Perth Gazette and Western Australian Journal (WA : 1833 - 1847), Saturday 6 April 1844, page 2


QUARTER SESSIONS.

Perth, Wednesday, April 3, 1844.

Before W. H. Mackie, Esq., Chairman, a

full Bench of Magistrates, and Grand and Petit Jury.

The chairman addressed the grand jury at some length, and referred to the several cases and the heavy state of the calendar, remarking that they had now before them the first case of murder committed by a white upon an European since the founda-tion of the colony ; that this case rested upon circumstantial evidence, and that it behoved them to weigh the matter well in their minds, as all testimony of this nature required great care and deliberation; at the same time they must recollect in these cases it was seldom that eye witnesses of the

deed could be adduced, and that a strong chain of circumstantial evidence was worth

more than the testimony of one individual, who might be actuated by motives of re-venge or malevolence. [The able address

of the chairman we are under the necessity of abbreviating in order to give the entire evidence connected with the case of murder, for the same reason we have been compelled to abridge the other cases].

Goongor, a native of India was charged with assaulting Hookhum Chan with intent to murder by suffocating. Plea not guilty. The most important evidence, besides that of the party on whom the assault had been committed, also a native of lndia, was that of the Rev. G. King, who found Hookhum Chan bound to the bed posts, with some marks of violence on the chest, and blood on a cloth that he wore. In defence, the prisoner denied everything that Hookhum Chun had sworn, and said if he intended to kill him, he could have easily done it with the stick produced. The motive assigned by Hookhum Chan for the attempt, was a dispute concerning some money he owed the prisoner. Verdict, guilty of a common

assault. Sentence, six months imprison-

ment with hard labor.

John Gaven was indicted for the wilful murder of George Pollard of the Dandalup River, laborer. This case excited consi-derable interest and the court was crowded. The prisoner was about 15 years of age,

and the deceased seventeen.

The Advocate-General G. F. Moore, Esq., opened the case on the part of the crown, and after stating the evidence to be adduced, called

Jane Pollard, mother of the deceased : I remember Ash Wednesday, 21st Feb. last. About the middle of that day, be-tween 12 and 1 o'clock, prisoner came in to dinner, and my son, the deceased, sent him for a gimblet to the carpenter's shop. I recollect then telling my son that I felt very unwell and could not sit up, and I told prisoner to get up the dinner. I felt as if there was something very heavy over my heart. Deceased recommended me to go to bed, and after prisoner and deceased sat down to dinner I did go to bed. There was no one else in the house then. When I went into my bedroom I left prisoner and deceased in the kitchen. I fell asleep and was awakened by prisoner coming into my room with a piece of board in his hand. He said, "are you awake, ma'am?" I said yes. He said deceased had sent him to me with that piece of board which had been broken off a door. There is no door to my bedroom, nor to my son's. I told him to

leave the board there till his master came home. He had been checked twice that day for slamming a door behind him. Prisoner was not a minute in my room. I then tried to sleep again, but was disturbed by the deceased beginning to sing; he was

then in his room, a lean-to, next to my bed-room, and the partition wall has not been filled so that I could hear partly what he

said, but not all. The last words I heard him sing were—

"And when we close these gates again

We will be all true blue "

The sound of singing then suddenly ceased. I lay a little longer, but I was aroused by some feeling I could not account for, and I leapt out of bed. I exclaimed, "good God, is there no peace for my afflicted heart," and that I could find no relief but in prayer. I went to the door of my room leading into the kitchen, and as I passed through the doorway, I saw the prisoner in the act of drinking out of a basin. He laid the basin on a shelf, and was leaving the kitchen, when I asked him what he was doing ; he said he was filling a barrow with straw at deceased's door. I went to the kitchen door to see what he was doing, and saw him lifting up straws in a lazy manner, dropping almost as much as he raised. I

asked him if he did not mean to fasten the straw down, and he said he would do so with a string. I went into the kitchen to prepare my dinner, and while doing so, the prisoner came in and stooped under the dresser, but did not take or ask for anything; I asked what had become of a jug of milk, as he raised himself I observed his lips were very white, and I thought he had been drinking the cream. He went out of the kitchen, and I went on with preparing my dinner, and was making some batter, when I thought of going to see what deceased was doing, as I did not hear the sound of his flail at the barn. I went out of the kitchen torwards the deceased's door, when I saw the prisoner rush out of that door looking wild as if in distraction. He began to stoop and look down and about him, I asked him what he was looking for, he said nothing; I said he could not look for less. He continued walking about in the same way for a minute or so when I said, "Why Gaven, you are like one losing your senses ; are you losing your reason, or what ails you, boy?" He made no answer that I heard. He was then going towards the carpenter's shop. I then went to the door of deceased's room, and saw him lying on his bed, with his back to me. I called him two or three times, and no answer was given. I went in and shook him, and was surprised at his being so fast asleep in so short a time. There was a coat over, and tucked under, his head. I removed the coat and saw him in a gore of blood, and thought it might have been from bleeding at the nose. I put my left hand under his face, and my right hand under the back of his head, to raise it up, and my hand sunk into the back of his head. I raised his face a little, and he breathed a few times. I clapped my hands and said, "my child is smothered in his own blood." I screamed, "George, my jewel, tell me your murderer". I am

sure he was not dead when I first raised his head. I called out, George, George, and Johnny Gaven, Johnny Gaven. My son Michael came immediately to me, and asked what ailed me, I said Johnny Gaven was after murdering his brother. He asked if he should go for Mr. Singleton, I said yes, and he immediately went. Michael had been in the barn picking out drake. The barn may be 20 yards from the house, I cannot tell exactly. My son Thomas next came to me. I kept going in and out of the deceased's room, and saw an adze lying on the floor, and found it covered with hair, and blood and brains I found it lying on the floor half-way between the bed and door. It might be about a half, or a quarter of an hour before Thomas came in. He came up screeching to know what ailed me, and I told him his brother George had been murdered, and I showed him the bloody axe. He went by my desire to his sister and brother-in-law, who live at a place called Corolayup. Prisoner came next. By that time I suppose my son Thomas had reached Corolayup, which is four miles off by the road, but, as I have heard, about two miles though the bush. All the time I had kept calling out, "mur-der! murder! Johnny Gaven! Johnny Gaven !" I saw him come up in a direc-tion from the piggery. When I last saw him, he was going from the house in the direction of the "carpenter's shop. I said to him, Johnny Gaven, Johnny Gaven ; he replied "do you want me, ma'am" ; I said, do I want you ? Where have you been to, or why did you not come to me. When he came up to me, he said he had been to the river tor a drink. What h I saw him drinking in the kitchen the bucket was just filled. I said I wondered he was thirsty again so soon after drinking in the kitchen; he said he had not drunk then. I asked why he had not done so, when he had brought in the bucket for his own use and had forgotten it. I said if you forgot the water you did not forget to murder my poor

child. This passed outside the house. he said he did not, and why did I lay it on him, or any other person. I asked who 1 could lay it on but him, there being no other person on the premises that day but my three children and he. I told him I had seen him coming out of deceased's room and had every reason to suspect him. I asked him several times why he did not come to me when I kept screeching for him; he said he did not hear me. He then said, perhaps my native might have killed the deceased, I replied that there had been no natives there that day, or several days before. He then said, perhaps he had murdered himself; I said, "you murdering villian, why should you belie my dead child - he could not take an adze and murder himself on the back of the head." He then went into deceased's room and said George won't say 1 murdered him ; I answered, you did not give him leave to breathe. He then called out, George, George," and î went to push him away from the bed, he said "don't put a drop of blood on me; you said I murdered our child, don't put a drop of blood on me." I then took notice of his shirt being wet, and said, "you villian, did you go and wash the blood of my dear child off your clothes;" he said he had fallen into the river I do not recollect that I put my hand actually on him, as he stood back and put up his hands to keep me off. I said I would have the shirt off him. I put my apron round my hand, and seized him by the shirt collar, and pulled the shirt off him in order to let Mr. Singleton see the shirt was wet. I used the apron to prevent the blood on my hands staining his shirt. He wanted another shirt from me, and went with me into the kitchen, and I shut both the front and back door upon him. I saw a cord lying on a chest, and tied his left hand, which he let me do without résistance, but be struggled much against my tying his right hand, but I got stronger as he got weaker, and 1 tied both his hands at last. There were two large rooms in the kitchen and he began to look about, and Ï was afraid he would escape, so I took him into deceased's room, because there was only door to guard, and only one window, small to get through. I had a stick in my hand which I took up to guard him, and, somehow or other he got hold of the stick and I had a hard struggle to get it back. He said he would swear against me for making him a prisoner, and hurting his hands After this he came out of the de-

ceased's room, 1 retreating before him, and he then knelt down and said,"do forgive me, ma'am, and don't say 1 murdered your son, and I'll pray for George," He said

so several times. I said he had not given George time to pray. After that, he said at different times,' do, ma'am, blow my brains out." 1 paid I would not imbrue my hands in his blood, as he had done in my son's, and that 1 would deliver him to the law After this he became more case

hardened, and said he did not regard what I could do, as I did not see him do it. He kept coming up to me and placing his hands against me, and saying " Í didn't in an impertinent way. He kept doing so till

the soldier Longworth came up to me followed by another person and Corporal Alcock. 1 know that deceased had borrowed a book of songs. I found the book of songs in the deceased's bed at the time I went to his bedside. The next day I looked into the book to find the words I had heard him singing, but could not. Afterwards my daughter found the words in a page glued to another page by blood, I did not see any stains of blood on prisoner's clothes. The adze now produced is the one I found in the deceased's bedroom. The trousers produced are those the prisoner had on the day in question. The adze is my husbands. The handle was not loose as it now is when I found the adze in deceased's room- The handle was then in the iron socket. I lifted it by the handle. The prisoner was an apprentice of my husband. The river op-posite our house was half the depth of a pork barrel in the deepest part. Prisioner told me had fallen into the river at a spot where there were two or three pork barrels in the river, and near the bank. They were so close that a person could not fall

into the river between them and the bank.

Cross-examined ; I did not see anything particular in the conduct of prisioner and deceased to each other at dinner. 1 took no notice of their conversation» Deceased did not tell prisoner to go for the gimlet in an angry manner. I never knew any quarrel between them» 1 recollect deceased saying to prisoner, come away, don't stand to be blowed up in this manner. Some time I had reproved deceased and prisioner but not repeatedly. Whenever prisoner was reproved by anyone, deceased not his

part and he seemed to be attached to the

deceased. I never saw anything hostile in the prisoner's manner towards the deceased —upto the time of my lying down on the day aforesaid. I saw no signs of any misunder-standing between prisoner and deceased I never saw the prisoner reading out of the book produced, I have heard him humming a tune at different times, but I never remember to have heard him sing any words. The tunes prisoner hummed were not psalm tunes to my knowledge. Gaven called me twice a little louder than usual, when he brought me in the piece ot wood. When the sound of deceased's singing sud-denly ceased, I did not hear any other sounds The uneasiness I felt had nothing to do with prisoner.I observed prisioner's lips looked white as soon us he came into the Kitchen, and before he stooped under the dresser. He must have known that I was then in the kitchen. I did not suppose that he meant to hide himself. He came in quickly, stooped down under the dresser, and was going out as quickly, when ï asked him who had drank the milk, he then turned

partly round to me, and then I observed his lips. Deceased was a good deal taller and larger than the prisoner. When I saw prisoner coming up from the river, he was coming very slowly. I could not tell at first whether he was moving or landing. I saw his face was clean as if just washed, but did

not notice whether his head was wet. He did not say anything about a dog drinking out of the bucket in the kitchen. I did not observe any marks or blows about deceased's mouth. I have often heard deceased

singing out ot the book produced. I never heard prisoner express any dislike to any song in the book. I do not know that any song had told prisoner to carry away straw. There had not been any pig killed about the premises for three weeks before. I do think that fresh blood stains can be effaced by washing. I remember a dish of blood being in my room from as Saturday to a Monday on a chest. That was from a fortnight to three weeks before Àsh Wednesday The prisoner was not present at any examination before Mr. Singleton.

By the Court : From the time 1 got up out of bed till the time I saw him lifeless, was about five or six minutes. No creature was on the premises that day except myself, the deceased, my sons Michael and Thomas, and prisoner. Thomas ss between 10 and 11, and Michael between 7 and 8. When prisoner came he said his age was 14. I neither saw or heard of any natives about the premises that day except what prisioner spoke of

Thomas Pollard. I am a son of last witness

I recollect the day my brother was killed, I was then out in the bush with the cattle. I heard my mother cry out Johnny Gaven; I was at a distance since measured of 800 yards from my mother's house. I ran up to my mother, and asked what was the matter. She said Jonny Gaven had murdered my brother George. I went into the room to see my brother but I could not tell whether he was dead or alive. I went off to my brother-in-law's. I ran there. As

I approached the dwelling house when my mother called out, I saw prisoner going round the Carpenter's shop as if he was going in it. The carpenter's shop is close to the house. He ought to have heard my mother calling out much more plainly

than I did.

Cross-examined: I never heard prisioner sing or read out of the book produced. I have heard deceased sing songs out of it in prisoner's hearing, who did not appear at all annoyed at the songs, but continued with

whatever he was about.

F. C. Singleton, Esq: I am the committing magistrate. Mrs Pollard gave me in substance the same account she has given in court today. She told me far more, but I took down only so much as I considered necessary. I was at Pollard's the evening ot the murder, und examined the bod. It was lying on and across a straw bed, about the height of this court table, in a lean-to The bed was across the lean-to. I found the head cleft to pieces, a continuation of wounds, quite a mush of skull, brains, and hair. I gave directions for the body to be washed. Early next morning I returned to Pollard's and, with Sergt. Burrell, examined the body again. I found two wounds on face, one across the cheek bone and nose, the other across the temple, part of three flngers severed,one cut behjnd left ear, several blows on back of head, smashing the skull into a number of pieces, in a slanting direction, 9 inches long. I measured the several distances referred to. I saw no appearance on the banks of the river as if any one had fallen. The river there is only 18 feet wide- 2 feet 3 or 4 inches deep six feet from the bank. The carpenter's shop is

22 yards from the house. Where Thomas

Pollard was herding the cattle when he heard his mother call, was 800 yards from the house. The spot at which prisoner sais he fell in was 48 yards from the house and the spot at which he said he came out 45 yards. During Mrs. Pollard's examination

the prisoner was kept outside in the custody of two soldiers. Afterwards, and while she was present, I read over her depo-sition to him, and asked her if it was all right, and she said yes, but I did not re-swear her in his presence. He put questions to her. I saw a pork barrel in the

river just oposite the part of the bank at which prisoner had said he had drank. Pri-soner was examined by me two or three hours after deceased was found dead, he was then stripped of his trousers, now pro duced, which were quite wet, and they Were left in the keeping of a soldier. The next morning I examined the trousers, when dry, and discovered what I conceive spots of blood, which I now point out.

Josbeph Harris, Esq. , acting Colonial Surgeon: I have heard the description given by Mr. Singleton of the wounds re-ceived by deceased. I am of opinion such

wounds are sufficientto cause instant death.

I am surprised to hear that deceased breathed at all after them. I think such

wounds were likely to be inflicted by such an instrument as the adze produced. I think a boy like prisoner capable of inflicting

such wounds with such an instrument.

For the defence Mr. Nash took the line

of adverting to the danger of trusting to mere circumstantial evidence, quoting some cases in which many who had suffered the extreme* penalty of the law on such evidence, had after execution been proved innocent. The learned counsel also expatiated on the evidence before the jury, showing that all the expressions of the prisoner could bear a verv different interpretation to that imputed.

He further remarked on the total want of

any motive to commit such an astrocius crime; none had been alleged by the crown» none attributed by the witnesses. The counsel had previously raised a point of law, which briefly was this,-that in the eve of the law the prisoner was not in court ; that the committal was illegal because the depositions before the committing magis-trate were taken in the absence of the prisoner, and that committa! being Illegal, all subse-quent steps were void. This was argued at great length, and with great ability, but was overruled by the court, the same point was again raised in arrest of judgment.

The chairman after recapitulating the evidence commented upon the iegal points in the case, and stated there was one for the consideration of the jury, that no malice prepense had been proved, which was in the prisoner's favor. The jury retired, and after being absent about an hour returned a verdict of guilty. The passing of sentence was deferred until the following day, when the chairman, in a most impressive and moving address to the prisoner, wherein he enlarged on the magnitude of his crime, the absence of any provocation, and lamented that a boy so young should have committed

one of the most diabolical crimes that the

foul feind could have instigated. He said there was nothing in the evidence that could

induce the bench to recommend him to

mercy, nor was there any power for a higher authority,to interfere, he therefore solemnly adjured him to remember that, his hours were numbered and that in a short time he would be in the presence of his maker, but that he must also impress on his mind, that it would be some atonement if be were to to make a full confession of the motives that influenced him in committing so foul a deed. His painful duly now was to pass the sen-tence of the law, '«That he should be taken to the prison from whence he came, and from thence be conveyed on Saturday next to some convenient spot, where he should be hanged by the neck until he was dead, and then suspended in chains, and might Almighty God for Jesus Christ's sake have mercy on his sinful soul.

Thursday, April 4, 1844.

James Stoodley was indicted for the man-slaughter of Wabbemara,an aboriginal na-tive of the Upper Swan. It appeared from the evidence of Charles Gee and Henry Wilson, both in the employ of W. L. Brock man, Esq., at Ginjerrap, that Wabbemarra

and another native were seated at the fire outside the house, the prisoner came in from the bush and ordered them off; they did not move, he struck them with the lash of h¡s cattle whip, when he was remonstrated with by the deceased; the thong of the whip came off, and he used the handle, small gum sapling. The deceased fell and was carried off by other natives, he

seemed incapable of walking without sup

port; he was not afterwards seen by any of

the white men.

The counsel for the prisoner, Messrs. Shoales and Nash, availed themselves of the circumstance to plead the probability of his still being alive; and that the native whose grave had been subsequently visited was not that of the alleged deceased.

The jury retired for a short time, and re turned a verdict of not guilty.

Fdward .- aimer, John Scott, David Moore, Robert Scott, Amasa Brown, William Smith, and Richard Fisher t wero indicted fo»* Mealing three cat>ka of oil, the property of George Leake.

James Lawrence, an approver, was the

chief evidence. He stated that Palmer and himself were sent to fetch in horses at

Leschenault, and on their way back to Scott's, Palmer told him he had seen some oil casks on the beach. They were tried and found to, contain sperm oil and head matter. They then supposed they were

*oroe cafks that had dlifted ashoie from the wreck of the North America. The

casks were towed up the inlet and buried on

Scott's land. It v>at* their intention to send it to Scott's agent at Guildford«

In the defence, conducted ky Messrs. Schoales and Na*b, the chaiscter of the informer was severely handled4nnd evidence adduced that he had threatened to be re-venged on Scott and the einer prisoners ; and further, that the presumption was, that the oil in question wa»* part of the wrecked cargo of the North America.

Verdict, not guilty.

The announcement of the verdict was

received with great cheering, and seemed to give general satisfaction, arix.pg from the high character gome of the accused have lor many years borrie in the Colony, indeed, the Advocate-General, in opening hi» address fas Crown prosecutor, expressed his viibinghehs, although departing Irom the usual course, to state, that he had always considered John Scott as an indus-trious and honest man, from his knowledge

of him for a series of years.