The Court opened at 10 a.m. His Honour took his seat, when the Clerk of Arraigns called over the jury list. The members of the bar present were the Attorney-General and Mr. Paul.
James McPherson, alias the Wild Scotchman, alias Kerr, alias Alpin Macpherson, was placed at the bar charged for that he, on the 27th November, 1865, robbed her Majesty’s mail, and put the mailman in bodily fear.
The prisoner pleaded Not Guilty. The Attorney-General appeared for the prosecution. The prisoner was undefended.
The Attorney-General having opened the case, called JOHN HICKEY, who being sworn, deposed:
I am a labourer, and live at Toowoomba; I remember the month of November last; was running the mail at that time between Gayndah and Golden Fleece; on the morning of 27th November last, received the mail bags, which were sealed in the usual way, and left for the Golden Fleece; when about 26 miles from Gayndah, a man rode up to me and presented a revolver; the man was the prisoner at the bar; he said, “Pull off the road, I want to see if there’s a letter in that bag for the Wild Scotchman; I won’t take you far”; went off the road about 200 or 300 yards, when he said “That will do -, take the bags off”; I took them off; the prisoner then asked me for a knife, which I gave him, when he broke the seal, took out the letters, and opened them, taking all the notes and cheques; he gave me some cheques back; while taking out the letters prisoner was kneeling on one knee with a revolver by his side and his gun behind him; when leaving he told me to gather up the letters and put them in the bag, which I did, and went on to the Golden Fleece. On arriving there I telegraphed to the Sub-inspector of police, and gave the bags to Henry Williamson in the same condition as when I brought them; I saw the prisoner the next day, about 4 miles on the Gayndah side of Mrs. Irwin’s; I had the up-mail; prisoner was carrying arms; was with him that morning for about ¾ hour, and was in fear of my life.
CROSS-EXAMINED BY THE PRISONER: I saw you take some notes; you rode up to the ridge and met me at the top; you was armed with a gun, and presented it at me; swear you took some notes; some cheques you returned; I was with you about an hour.
EDWARD ARMITAGE, examined by the Attorney-General: I live on the Mary River, and am a lumberer; I recollect March last; was mailman then; I know Mr. J. Walsh; on the 30th March, I saw prisoner at Monduran; Messrs. Nott, Walsh, Currie and N. Brown were present when I saw prisoner; we stopped prisoner on the next day; he was leading a horse with a swag and an American axe on its back, and had a double-barrelled gun and two small pistols; I saw prisoner secured with straps and a chain; did not see what was done with either the arms or the prisoner after that; I went on with the mail; I had seen the prisoner before on the same road in the Port Curtis district, on the 3rd March; he then had two revolvers and a gun; I was with him that time about an hour.
CROSS-EXAMINED BY THE PRISONER: You did not present any arms at me; on the 3rd you had no revolvers in your hand; I saw a revolver in your bosom; you had no coat on; I could not swear they were revolvers, but they were in revolver pouches; saw a double-barrelled gun in your possession; on the 30th I overtook you on the road; saw a double-barrelled gun in your possession; I was about 150 to 200 yards from you; you dropped the gun before you were taken; I saw two small pistols taken from you.
JOHN WALSH, examined by the Attorney-General: I live at Gayndah, and an assistant postmaster; I remember Nov., 1865, and was in the same capacity at that time; I know John Hickey, and saw him receive the mail bag on 27th Nov.,; I tied and sealed the bags before delivering them to Hickey; all the letters in the bag were post letters.
HICKEY recalled, and examined by his Honour: I did not see the prisoner again after 28th November, for about three months, and then it was before a magistrate; I do not remember the date.
JOHN WALSH, cross-examined by his Honour: I do not recollect the date when I saw the prisoner before the magistrate.
JOHN WALSH deposed: I live at Degilbo, and am manager of a cattle-station; I remember the 30th March last; took the prisoner that day; Mr. Nott, Mr. Currie, Mr. Gadsden, and Armitage were with me that day; prisoner had a double-barrelled gun, and was leading a pack-horse; I met him the first time while on my way to Monduran; Mr. Gadsden only was with me at that time; about three quarters of an hour after that we all saw him; the moment he saw us, he let his pack-horse go, and dropped his gun; we rode after him, and when we overtook him I called upon him to surrender; could not hear what he replied; after we secured him I took the pistols, but did not search him; I examined the pistols, and saw that they were capped; after taking him to Monduran we went back to where he was captured, but it was then too dark to look for anything; on searching next morning we found the gun, which I examined and found one barrel on full cock and capped.
CROSS-EXAMINED BY THE PRISONER: When I first saw you, was within five or six yards off; swear you had a gun; saw you throw the gun away; I will not swear it was the same gun; did not pick up the gun till next morning; you did not make any attempt at resistance; Armitage bound you.
NUGENT BROWN being called, said; I live at Gingin; the superintendent of Gingin Station; was in the same capacity in March last; I saw the prisoner when he was captured; Mr. Nott and Mr. J. Walsh were with the prisoner when he was brought to Gingin; a double-barrelled gun and two small pistols were given into my possession by Mr. J. Walsh.
CROSS-EXAMINED BY THE PRISONER: I saw you first at Monduran; you were then captured; I then saw the pistols, but no other firearms were shown to me that day;
H. H. HARRIS deposed: I am a constable; I remember seeing prisoner at Gingin on the 1st April last; he was given into my custody; Mr. Brown gave me a pair of pistols and a double-barrelled gun; I brought them and the prisoner to Maryborough.
R. R. WARE said: I remember April last; Saw prisoner that month; I got Constable Harris a pair of pistols, and a double-barrelled gun; examined the arms and found them all loaded; the gun was loaded with three balls and slugs; (arms and contents produced).
W. H. WILLIAMSON deposed: I live in Gayndah; am a sawyer; remember March last; was at that time running the mail between Maryborough and Golden Fleece; know J. Hickey; remember 27th of March last; Hickey gave me some mail bags on the evening of that day not sealed; cannot say whether they had been sealed.
THE PRISONER, on being asked if he wished to address the jury, said that upon every occasion when it had been reported of him that he stuck-up a mail, or had been seen by any one, he had been described as having always having two or three revolvers and a rifle or carbine, whereas when he was arrested no such arms were found upon him – he had no other arms than a common fowling-piece and a pair of small pocket pistols, less destructive than those commonly carried by most men in the bush, for purposed of self-protection; and even the gun was not found in his possession, but was picked up afterwards, and had not been sworn to as being his. It would also be evident, from hearing the evidence of the principle witness against him, that his (witness’) conviction of prisoner’s identity, as the person that stopped and robbed him, had been founded more upon hearsay and listening to the opinions of others more than upon any knowledge he could have of the person that robbed him, considering the short time that witness was in his company and the time that elapsed until he saw him again in that Court under suspicious circumstances.
THE LEARNED CHIEF JUSTICE then addressed the jury, reading the evidence and commenting on it. The address of the prisoner he would not trouble them with remarks on, as they would be quite capable of establishing what value should be attached to it. From Hickey’s evidence they would be able to judge whether he was put in bodily fear or not; if not, the crime would be reduced to simple larceny. As to the identity of the prisoner, it was for their consideration whether Hickey, who saw the man on two occasions for nearly an hour each time, would be able to identify him again after five month’s time.
THE JURY retired to consider their verdict, and another jury was sworn to try the prisoner on the next charge. After being absent for about half an hour, they brought in a verdict of guilty, with a recommendation to mercy. On the foreman being asked by the Chief Justice on what ground, he replied that no actual violence had been used.
James Macpherson was again placed on his trial on the charge of robbing her Majesty’s mail on the 28th November, 1865, and putting the mailman in bodily fear.
The prisoner pleaded not guilty, and was undefended.
The Attorney-General having opened the case,
JOHN HICKEY deposed: I remember November, 1865; was running the mail between Gayndah and Golden Fleece at that time; I saw Williamson at the Golden Fleece a little after dark on that evening, and got the mail bag and some station bags from him; the bags were sealed, and I took them from the Golden Fleece in the same condition as when received from Williamson; while on my way to Gayndah, a man rode after me; I was then about four miles on the Gayndah side of Mrs. Irwin’s; that man was the prisoner; saw the same man the day before; he presented a double-barrelled gun at me, and said “Pull up. I shall take you further off the road today than I did yesterday, because I have seen the police about here this morning”; I went on with him about a quarter of a mile, when he said “That’s far enough”; he then told me to take off the mail bags; I took them off; prisoner opened the bags with a knife, and took out the letters and opened them; I saw him take something out, but don’t know what it was; there was writing and printing on it; his gun was laid up against a tree, and his revolver was in his pouch; I was with him for about three-quarters of an hour; it was through fear that I gave up the mail; on going away prisoner rode into the bush; I then gathered up the letters, put them into the bags, and delivered them at the Gayndah Post Office.
CROSS-EXAMINED BY THE PRISONER: You did now use any violence; it was the sight of the gun that put me in fear; you told me to open the bags, but I did not; you did not cover me while searching the bags; I was standing about four or five yards off; I did not see you take any cheques, and can’t say how many letters you opened; I did not see you take more than one piece of paper; you opened more letters than one; I saw the end of your revolver sticking out of the pouch; I will swear it was either a revolver or a pistol;.
CROSS-EXAMINED BY THE JURYMEN: I did not meet prisoner – he rode after me; the gun was nearest the prisoner when it was against the tree, and the pistol was in his pouch which was attached to a belt around his body;
WILLIAM HENRY WILLIAMSON said: In November last, I was the mailman between Maryborough and Golden Fleece; on 27th November; got the mailbags from Maryborough Postmaster; the bags were sealed; I delivered to Hickey at the Golden Fleece in the evening between six and eight o’clock; the bags were delivered by me in the same condition as I received them; saw Hickey next morning put the bags on his horse, and they appeared to be in the same state as when I delivered them;
CROSS-EXAMINED BY THE PRISONER: Hickey told me he had been stuck up on the 27th, but did not say he expected to be stuck up the next day.
JAMES HALCRO ROBERTSON deposed: I live at Maryborough; am postmaster; was postmaster in November last; remember the mail leaving on the 27th November last; gave Williamson a bag sealed, and addressed to the Gayndah Post office; there were about 130 letters in the bag, as well as eight station bags; it was Williamson’s duty to convey them to Golden Fleece.
WILLIAMSON was recalled, and cross-examined by the Chief Justice: I received a mail from Mr. Robertson on the 27th November, 1865, at Maryborough; it was that bag, with station bags that I delivered to Hickey at Golden Fleece.
J. WALSH said: I am assistant postmaster at Gayndah; was in that capacity in November, 1865; I know John Hickey; remember the 28th November, 1865; Hickey delivered a mail bag on that day; the bag was not sealed; about fifty of the letters had been opened.
HICKEY recalled, and cross-examined by the Chief Justice: It was on the 28th November, when he rose the double-barrelled gun at me; I was with him about three quarters of an hour on that day, and about an hour the day before.
BY A JURYMAN: When the gun was standing against the tree, I stood away of my own accord – was not asked to do so.
THIS WAS THE CASE FOR THE CROWN.
On PRISONER being asked if he had anything to say, he desired the jury to reflect upon the evidence; and if they thought there was any doubt to give him the benefit of it.
HIS HONOUR THE CHIEF JUSTICE then proceeded to sum up, reading through the evidence and commenting thereon as he did so. The jury then retired to consider their verdict, and the Court adjourned an hour for lunch. On the Court resuming, the jury entered the box, and brought in a verdict of guilty.
On the PRISONER being asked if he had anything to say before sentence was passed upon him, replied that until a few hours before he left Brisbane he was under the impression that counsel would have appeared for him; in that he had been disappointed. Appearances, he confessed, were against him, but he was not so bad as he appeared. He had once had an honourable reputation and good character, and he pleaded with his Honour that he would pass a merciful sentence, so that he might have an opportunity of again leading a life more useful to himself and others than he had done lately.
HIS HONOUR said it was with extreme pain that he has to pass the sentence he was about to do on a great strong man like the prisoner, whose life might have been made a credit to himself and useful to the community. But he was obliged to deal with all cases according to the view he entertained of the effect of the punishment on the dangerous part of the community. He regretted he could see nothing in either case to cause him to pass a light sentence.
The jury who tried the first case had recommended the prisoner to mercy, which he (the Judge) would have been prepared to accept, but more out of respect for the jury than from his own conclusions on the case. But the jury who tried the second case had not repeated that recommendation.
The evidence showed that these were not the only crimes of the kind the prisoner had committed; and if all the circumstances of the two cases had been before the first jury, that recommendation to mercy would probably not have been given.
The prisoner appealed for mercy; how could he expect it? He had entered upon a most dangerous course – one affecting vitally the welfare and prosperity of the country. He had taken upon himself to interrupt the communication between one part of the country and another, inflicting in many cases, probably, much personal suffering and loss, destroying trade; and as the example of the neighbouring colony showed, might lead to great effusion of blood. It was as much the interest of criminals as of the community, that they should be deterred by a severe example from entering upon such a career.
Some misapprehension seemed to exist of the state of the law in the colony – the jury in the first case recommending mercy on the ground that no one had been injured by the prisoner. He would tell the prisoner, and tell all to whom it might come, that by stopping short of murder the criminal did not render his own life secure. If he (the prisoner) had wounded Hickey, his life would have been forfeited to the law. He hoped it would have become generally known that to stop short of murder in this course did not render their own lives safe – that they had entered upon it in peril of their own lives.
The first jury had called his attention to the circumstances that no actual violence had been shown to be committed. If there had been, it would have been his (the judge’s) duty to have sentenced the prisoner to die. To treat leniently this offence on that account would be preposterous. What prerogative had the prisoner to present fire-arms, loaded or unloaded, at any person? There are many who would prefer personal injury to that. The sentence would not be so severe as it would have been had the prisoner wounded, because he should then probably have had to pass sentence of death.
On two successive days he (the prisoner) had stopped the mail – the only means of communication, it might be, between portions of the colony; and from the evidence it could be gathered these were not the only two cases of the kind. He had incited the dangerous class of the community to the commission of crimes, by representing the police and the authorities as too weak to deal with such offenders, and he hoped by the sentence he was about to pass such mistakes would be corrected.
THE PRISONER WAS SENTENCED TO TWENTY-FIVE YEARS PENAL SERVITUDE FOR EACH OFFENCE, THE SENTENCES TO BE CONCURRENT.
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