Sydney Gazette and NSW Advertiser
Saturday 23rd July 1814, page 2
Sitting Magistrate A. Riley Esq.
Assize of Bread
COURT OF CRIMINAL JURISDICTION
On Wednesday the Court assembled ; and proceeded to the trial of John White, for aiding, assisting, encouraging, comforting, and maintaining one Dennis Donovan (who had lately been executed for another murder), in feloniously killing and murdering Rowland Edwards and William Jenkins at the house attached to the Parramatta toll-gate, on the night of the 28th of May last.
To the arraignment the prisoner declined pleading guilty of the crime of murder, but acknowledged being present when the murder was committed ; qualifying his acknowledgement with a declaration that he took no part in the killing of the two persons named in the indictment.
The JUDGE ADVOCATE observed that it was necessary the prisoner at the bar should plead generally guilty or not guilty ; that his acknowledgement of being present at the murder was insufficient, as he was challenged by the indictment with being present, feloniously, and from his malice aforethought riding and assisting in the crime.. This was a constructive plea ; and could not be recorded. The prisoner must either plead guilty or not guilty to the facts alleged, or it was an imperfect plea ; and the Court must therefore receive it as a plea of Not Guilty.
The first witness called was Edward Mayne ; who deposed to the circumstances of the murder as detailed at length in the report of the trial of Hoollaghan and Suitar, in the Gazette of 20th ultimo. The jackets worn by the two assailants he described as being of darkish colour, and a part of the sleeve of a red jacket had been picked up near the toll house, shortly after the murder together with the hat and two handkerchiefs, as stated in the former report ; and the positive evidence he had given on that trial as to the person of Michael Hoollaghan, he now declared to be thoroughly conscientious, insomuch, that he even now could not rid himself of his first conception as to the identity of his person.
John Moffatt sworn – Witness lived at the house of Sarah Burne, at George’s River (6 or 7 miles distant from the Parramatta toll gate), & the prisoner at the bar lived there also, together with two other men, one named Edward Doyle, and the other Edward Bryen. Donnie Donovan, who has been executed, came there 7 or 8 weeks previous to the murder for which the prisoner at the bar stood arraigned, and was there frequently afterwards. About dusk on the evening of the 28th of May, Donovan went to the hut they lived in, with a musket ; he had a red jacket, but thought he that night wore a Guernsey frock. Donovan at the prisoner at the bar went away together. Donovan’s musket was fastened with a cord near the lock. A few days previous to this the prisoner at the bar had proposed to witness to accompany him to rob the toll house kept by Edward Mayne, which witness refused to do ; but when he went away with Donovan he did not inform him where they were going. About 2 or 3 in the morning of the 29th they returned, and went to bed in the same room with witness, and Edward Doyle. Between 8 and 9 witness went to grind some wheat, accompanied by the prisoner at the bar, who then told him that Donovan had shot two men at the toll-house, which they went to rob ; adding at the same time that he, the prisoner, had lost his hat and handkerchief in a scuffle that had taken place there. The hat found at the toll gate was shewn to him, and he swore positively it was the same worn by the prisoner when he left the farm that night with Donovan, and the red handkerchief also. Donovan left the farm on the Monday night following, and he had never seen or heard of him afterwards until he was in custody. Witness had often worn the hat himself, and he was certain it was the same.
Questioned by the Court. What motive do you suppose could induce the prisoner at the bar to make you acquainted with the circumstances of the murder, as you have stated? Ans. He did not suppose I would tell anyone else of it.
Questioned by the Court. Did you suppose that the prisoner at the bar was conscious that you knew whither, and with what design, he went with Donovan on the night of Saturday the 28th of May? A. Yes ; they both knew that I did know of it.
A musket found in consequence of information where it had been concealed by Donovan, was here exhibited to the witness, who swore it was the same he had taken with him on the night of the murder, at which time also he wore a handkerchief resembling a yellow one found at the gate. The old red silk handkerchief also found there was likewise shown to him ; and this he positively declared to have been wirn by the prisoner at the bar when he accompanied Donovan the same night ; It belonged to the witness, who had lent it to him a few days before, and he had never returned it.
Questioned by the Prisoner. Did I not tell you that Donovan had asked me to go with him to rob the house at the toll gate ; and that I had refused? A. Yes, you did.
Question by the Court. How long was it before the night of his murder that the prisoner said he had refused to accompany Donovan thither? A. Two or three days.
Q. In his conversation with you, upon the Sunday, did he tell you they had or had not robbed the toll-gate? A. He told me they had not robbed it, because the two men had been shot.
William Farrell sworn. Witness borrowed an old red jacket for Donovan off a Mrs Barnet ; it was afterwards mended by a taylor in the house of one Coffee, and continued to be worn by Donovan during the whole remaining time the witness was with him in the woods, which was until a few weeks before the murder at the toll gate.
Question by the Court. Had Donovan, during the time you were together, ever proposed to you to rob the tollhouse? A. Yes, often.
Thomas McCarthy sworn. Witness is a taylor ; was working at the house of one Coffee, in Sydney, some time ago, and saw Donovan there, who brought him an old red jacket to mend for him. Witness put a piece of red cloth on the left elbow, and sewed up a seam in the fore part of the sleeve, both with black thread, as he had no other. He afterwards saw Donovan wear the jacket. The part of a sleeve picked up at the toll-gate immediately after the murder was here exhibited to the prisoner’s view, and he readily knew it to be the very sleeve that he mended ; the patch put on with black thread remained upon the elbow and the seam in the fore part of the arm, sewed also with black thread, as described by the witness, left no doubt if its identity.
Sarah Barnet sworn. Lives in Clarence street, Sydney, and knew Donovan, who had been brought to her house by the witness Farrell by the name of Alexander Scott ! She lent him the jacket at Farrell’s request. When she afterwards saw Donovan again she observed that the elbow had been patched and the sleeve was mended. She frequently saw him in the same jacket before the murder at the toll-gate, but never since, as he afterwards had always worn a Guernsey frock.
Edward Doyle, an evidence before the Police Magistrate (who had taken his deposition and recognizance to appear and prosecute), was next called to give his evidence, but did not appear. The JUDGE ADVOCATE gave notice that he should in consequence move the Court that his recognizance be esteemed.
H. St. J. Younge, Esq. Surgeon repeated his former testimony as to his examination of the bodies of Rowland Edwards and William Jenkins after they were shot, repeating also, that the death was in consequence of the wounds received from the gun fired at them.
D. Wentworth, Esq. Superintendant of Police, and a Magistrate for the County of Cumberland, sworn. This Gentleman deposed, that the examinations relative to this trial were taken before him ‘ that they were read over to the prisoner at the bar, signed in his presence, and acknowledged by him to be true ; that the prisoner at the bar had also made a voluntary confession before him, which was taken down in writing, afterwards read over in his presence, and signed by him ; that neither hope or menace had been held out to him ; but on the contrary, he had been apprised of the serious tendency of his confession, and uniformly declared it to be his earnest and only wish to atone for his offence by rendering himself up to justice. Here the prisoner at the bar appealed to the Superintendent of Police ; and requested him to declare whether he had not, in his confession to him, uniformly maintained his innocence so fat as respected the actual shooting, while he at the same time acknowledged his guilt as being the man who accompanied Donovan in the assault ; to which the M dagistrate answered “Yes, that was precisely the case” adding also, that the prisoner at the bar had repeatedly acknowledged to him, that he was the man with whom the witness Mayne was engaged in the struggle when the gun was discharged by Donovan, by which the two murdered men had fallen.
Here the JUDGE ADVOCATE directed the depositions taken before Mr. WENTWORTH to be read. The first was that of the witness Moffatt, corresponding with his testimony given in to Court with this addition that after Donovan’s departure from the house of Sarah Burne, a conversation had taken place relative to the act now before the Court, between Sarah Burne, Edward Doyle, the prisoner at the bar, and himself. In the course of which they each pledged themselves to the observance of secrecy, and ignorance of the event.
The deposition of Edward Doyle stated that he saw the prisoner go with Donovan from the farm of Sarah Burne, on the evening the murder was committed ; that Donovan had a musket, and he believed the prisoner at the bar had also taken a musket, which he (the deponent) had borrowed from a Mrs Marner, of George’s River. He described the dress of the prisoner, and particularly mentioned his hat, which on his examination before the Superintendent of Police, he swore to be the one now produced in Court ; that it was almost disk when they went away, and returning before day-light, lay themselves quietly down in the room he slept in ; that the prisoner at the bar, after the prisoner at the bar, after they had arose the same morning, told him the gun, meaning the gun which he, Doyle, had borrowed from Mrs Marner, was concealed in a hollow tree ; that between 10 and 11 in the forenoon, he saw Donovan put the red jacket he had usually worn into the fire, wherein it was consumed ; that the prisoner at the bar had lost his hat, and having none to wear, borrowed the deponent’s ; that after church-time he heard of the murders, and had no doubt from the burning of the jacket, and loss of the hat, that the prisoner and Donovan were the persons who had committed the crime, the more especially as they had gone away armed ; and the hat and one of the handkerchiefs produced to him at the Police Office which were now in Court, he was convinced were the same worn by the prisoner that night.
The prisoner’s declaration taken by the Magistrate in writing, was also read ; and this went to a positive confession of the truth of what the foregoing affidavits contained. Being called upon for his offence, he delivered a short narrative, in which he stated that Donovan upon the evening of the murder called him out of his hut, and desired him to go with him ; that Doyle had given to Donovan the gun he had borrowed ; that Donovan led him to a hollow tree in which the gun was secured, and taking it out directed him to walk before him ; that he (the prisoner at the bar) objected, but Donovan insisted that he should go, for this Doyle and himself wanted some ???, and he (Donovan) moreover wanted some money, to enable him to get out of the country ; that Donovan carried the two guns till they came near the toll house where he gave him one of the guns, and desired him to keep up to him ; that when they arrived at the door, Donovan called to Mayne to get up ; that as soon as Mayne opened the door he attacked him (the prisoner) ; a scuffle ensued, Mayne called for assistance ; the two men (Edwards and Jenkins) came towards the door, and were immediately fired at by Donovan and both fell. He had no witnesses to call, except to character, which might have availed him in cases of inferior atrocity. The Court retired, and after an absence of 2 hours, returned a verdict – Guilty.
The JUDGE ADVOCATE, before he passed the Sentence of the La, addressed the prisoner with a view to impress on his mind the justice of this sentence, the utter preclusion of the hope of mercy in this world, which was consequent on the dreadful nature of his offence ; and the necessity he would be under, as he hoped forgiveness from his offended CREATOR, to devote the short remainder of his time in earnest supplication to Him alone who could dispense mercy to a contrite sinner. The offence of which he had been convicted was of a most direful, and particularly awful description, as well with respect to the fact itself, as to other circumstances that had been subsequently connected with it. Two fellow creatures had been deprived of existence in the dead hour of the night, when they least could have expected to barbarous an attack ; and two others had been convicted by the fact, upon testimony which to the Court appeared to be incontestable, while from the present day’s trial their innocence had as incontestably been made apparent. Such was the fallibility of human judgment ! In this extraordinary case, however, the interposition of Divine Providence had manifested itself in a marvelous and most surprising manner ; and its finger may be said to have pointed directly towards those on whose heads its awful vengeance should in justice fall. From the prisoner’s own declaration, supported by the clear and uncontradicted testimony of other persons, he evidently appeared to have been the man who was present, and acting in concert with the atrocious offender, Donovan, when Edwards and Jenkins were shot by him.
Out of the prisoner’s own declaration, in that very effect, a question of aw had arison from the matter of fact ; for the prisoner had stated that he did not accompany Donovan to commit a murder, but only to commit a robbery, at the turn-pike house. It had been proved that Donovan was armed with a gun, when the prisoner at the bar left the farm with him ; at Doyle, in his deposition, has said he had no doubt that the prisoner himself was also armed with the very gun which he (Doyle) had borrowed from Mrs Marner. This the prisoner at once concludes by his open avowal that he really was armed with a gun as well as Donovan, and which exactly corresponds with the testimony given by Edward Mayne on that particular. They had gone armed, and with their faces covered, with intent to commit a felony, and from that intent another had arison of a still more direful nature. They were acting together ; Mayne was in close contest with the prisoner, who desired that Donovan would knock him down, and he in consequence received several blows from the butt of Donovan’s musket, and thus they both escaped. It was a legal maxim that if several combine to commit a felont, and all are present, who it is committed even by only one of the number, yet by the construction of the Law they are all considered as equally guilty. The prisoner at the bar was therefore guilty in point of law, although in point of fact he might not be the man who discharged the musket. The learned Gentlemen here expatiated on the testimony given by Edward Mayne at the former trial to the identity of Hoollaghan ; and remarked thereupon, that he had no doubt but the witness from some strong conception which had pressed upon his mind, did actually believe that Hoollaghan was one of the people, though it was now evident that his judgement had been too precipitate, and his ??? not ??? from deliberation legitimate causes, but from a strong apprehension excited, doubtless, from previous information he had received of their having an aversion to him. The JUDGE ADVOCATE then expatiated upon that ??? of the prisoner’s confession which went to point to imply his accompanying Donovan by compulsion and against his own will. But this was altogether opposite to the evidence of Moffatt and the deposition of Doyle, ??? stating that the prisoner had himself ??? agreed then to accompany him, to commit that very robbery which he had afterwards attempted with Donovan. Then surely, if he had paid the highest repugnance to it, he might very easily have got away from Donovan ; whose upon ??? in combination with other persons at the farm of Burne encouraged there, and been intimate with for a length of time the murder. The prisoner had not, to any ??? whatever since deported himself as a man who feels a sense of horror at what Donovan ??? company, but on the contrary had entered into a ??? to keep it secret. He knew that ??? persons had been convicted of the very offence in which he was guilty ; he had been ??? these.... they would have suffered death for his crime, yet still he kept his secret, and would in their death have added murder to murder, had not the Almight God have ???, by a marvelous disclosure of circumstances which for a long time might have kept the minds of men in painful doubt and uncertainty, ultimately fixed the horrid burden where it ought to fall. Lastl, exhorting him to use his best endeavours to obtain remission of his crimes in a future state the JUDGE ADVOCATE pronounced the sentence of the Law ; which ?? the unhappy man to suffer death on Friday, and his body afterwards to be delivered up for dissection – which sentence has been carried into execution accordingly.