THE TRIAL OF EDWARD KELLY
The end of the Mansfield tragedy, which occurred exactly two years ago, has now been nearly reached, inasmuch as the leader and the sole survivor of the gang by whom the police were slaughtered, was yesterday found guilty of murder, and was sentenced to death. There is always a fear that justice may miscarry through a blunder at law, or through the perverseness of a juryman, and, therefore, it is satisfactory to find that a verdict was arrived at without hesitation. There are many other circumstances on which society is to be congratulated. The Mansfield party might all have been murdered, as were the four constables who set out in 1867 to apprehend the notorious CLARKS of New South Wales. The two criminals in question surprised and shot down their pursuers, and they afterwards cut the throat of an accomplice (the third man of the party) who they feared would betray them, and for this particular offence they could not be brought to justice. The escape of Constable McINTYRE enabled the Mansfield crime to be sheeted home. It is also well that one of the gang, at last, should undergo a public trial and a death upon the scaffold, if for no other reason than that an opportunity has been afforded for the delivery of a judgement by Sir REDMOND BARRY, which will be read by all men, and which cannot be too much taken to heart by many. One passage we cannot forbear quoting. It is that in which his Honour calls upon the foolish and the thoughtless to consider and reflect upon what the life of a felon is:―
“A felon who has cut himself off from all the decencies, all the affections, charities, and all the obligations of society, is as helpless and degraded as a wild beast of the field. He has nowhere to lay his head, he has no one to prepare for him the comforts of life, he suspects his friends, he dreads his enemies, he is in constant alarm lest his pursuers should reach him, and his only hope is that he might use his life in what he considers a glorious struggle for existence. That is the life of the outlaw or felon, and it would be well for those young men who are so foolish as to consider that it is brave of a man to sacrifice the lives of his fellow-creatures in carrying out his own wild ideas, to see that it is a life to be avoided by every possible means, and to reflect that the unfortunate termination of such a life is a miserable death.”
This is the moral of the story. The Kelly gang met with extraordinary success. Between four and five thousand pounds came into their possession, and for a long time they were able to defy the police. Yet they never had a place to sleep in, and when the end came, the survivor had not a penny to fee counsel for his defence, but had to cast himself upon the charity of the Crown. He lived miserably, but associates fattened upon him. So it always is. What the story also illustrates is the terrible responsibility cast upon parents―for the whole secret of KELLY’S career is contained in the fact that when he was brought to the Melbourne Gaol to be tried for his life, he found there his mother. He was allowed by his parents to live a common thief, and he dies a murderer. It is now evident that no gang, however well armed, however desperate, and however fortunate, can escape the steady pursuit of the officers of justice, and with the execution of EDWARD KELLY we may hope will close the history of organised bushranging in Australia.
The trial of Edward Kelly for the murder of Constable Lonigan was continued before his Honour Sir Redmond Barry yesterday morning, at the Central Criminal Court. The court was again crowded, as were also the precincts of the building, and towards the end of the case there was an extensive crush of persons anxious for a glimpse at the notorious prisoner. The evidence was completed by luncheon time, and when the Court resumed sitting in the afternoon, Mr. C. A. Smyth addressed the jury for the crown, reviewing the evidence which had been adduced. Mr. Bindon addressed them on behalf of the prisoner, and his Honour having delivered his charge, the jury retired to consider their verdict. The latter returned at the expiry half an hour, and announced that they found the prisoner guilty of murder. On being asked if he had any statement to make, Kelly, speaking in a mild undertone, said that he was sorry he had not examined the prisoners himself, as he alone understood the case properly. His honour the sentenced the prisoner to death, and informed him that he need cherish no hope of reprieve. Whilst he was passing the sentence, the prisoner interrupted him frequently, taking exception to the views expressed by his honour of his character and his career. The only relative of the prisoner present was his cousin, Kate Lloyd, who was accompanied by another girl named McAuliffe. As the felon was being removed to the gaol, they bade him good-bye, but nothing in the form of a scene occurred. On reaching the gaol Kelly was placed in irons and confined in the condemned cell.
SENTENCE OF DEATH
The trial of Edward Kelly on the charge of murdering Constable Lonigan was resumed in the Central Criminal Court yesterday, before his Honour Mr. Justice Barry. The Court reassembled at 9 o’clock.
Mr. C. A. Smyth and Mr. Chomley prosecuted, and Mr. Bindon appeared for the defence.
Frank Beacroft, draper’s assistant living at Longwood, said that he was with Mr. Gloucester at the time the Faithfull’s Creek station was stuck up. He gave evidence similar to that of Gloucester in reference to the statements made by the prisoner as to the manner in which Lonigan had been shot.
Robert Scott, manager of the National Bank at Euroa, gave evidence as to the prisoner sticking the bank on the 10th December, 1878. He asked Kelly who shot Lonigan. Kelly said, “Oh, I shot Lonigan.”
Cross-examined by Mr. Bindon.―The prisoner treated me and Mrs. Scott well.
Henry Richards, police constable stationed at Jerilderie, New South Wales, said that in February, 1879, the police station there was stuck up by the prisoner and three other men. Prisoner said he had come to shoot him because he tried to shoot him (Kelly) on the punt at Tocumwal two months before. He said he also intended to shoot Constable Devine, as he was worse than a blacktracker, and was always following him about. Constable Devine asked the prisoner about the shooting of the police in Victoria. The prisoner said that a reward of £100 had been offered for him for shooting Constable Fitzpatrick. He was not guilty of that, as he was 200 miles away at the time that Fitzpatrick was shot in this way. He had gone to arrest Dan Kelly; that his mother asked him if he had a warrant, and he said he had not, and his mother then said that Fitzpatrick could not arrest Dan if Ned was there; that Dan tried to take the pistol from Fitzpatrick, and in the scuffle the pistol went off. Prisoner also said that he had not gone out to shoot Kennedy, Scanlan, and Lonigan, but was determined to get their arms. The reason he shot them was that they were persecuting him. He said he had Sergeant Kennedy’s watch, and he intended to return it in course of time.
Cross-examined.―Kelly told Mrs. Devine that he would not shoot her husband. The remark about the shooting at Tocumwal referred to this. About two months before, while he and another constable were on patrol duty on the New South Wales side of the Murray, they saw four men in a punt, and he called out that he would shoot them if they did not answer. The men proved to be Victorian police.
Edward M. Living, clerk in the Bank of New South Wales, Jerilderie, said that after the bank was robbed, in the course of a conversation with him, prisoner said that he had shot the police with a gun he had. “It was an old one, but a good one, and would shoot round a corner.” Prisoner went to the newspaper office to give a written statement for publication. The proprietor was not in, and his wife refused to take it. Prisoner gave him the statement, and he afterwards handed it to the police.
The statement was tendered in evidence, but was not received.
John Wm. Tarlton, clerk in New Zealand, was clerk at the Bank of New South Wales, Jerilderie, in February, 1879. Prisoner stated that people talked about their shooting the police, but they had done it in self defence. The police had been persecuting him ever since he was 14, and he had been driven to become an outlaw. He had a revolver which he said was taken from Lonigan after he was shot. He said he shot Kennedy and Lonigan, and that Hart and Byrne were miles away at the time. The prisoner left the impression that he had done all the shooting himself.
John Kelly, senior constable of police, gave evidence as to the Glenrowan affair, and produced the armour the prisoner had on when he was wounded. Prisoner said to Constable Bracken, “Save me; I saved you.” He (witness) replied, “You showed little mercy to Sergeant Kennedy and Scanlan.” Prisoner said, “I had to shoot them or they would have shot me.” Asked him where Kennedy’s watch was, and he said he didn’t care to tell. The witness corroborated Constable McIntyre’s version of the conversation between him and the prisoner at the lockup. Between 3 and 6 o’clock the same morning had another conversation with prisoner in the presence of Constable Ryan. Gave him some milk-and-water. Asked him if Fitzpatrick’s statement was correct. Prisoner said, “Yes, I shot him.”
Arthur Steele, sergeant in charge of the Wangaratta police station, gave evidence as to the arrest of the prisoner at Glenrowan. When he was captured he said, “Don’t kill me; I never hurt any of you.” Constable Kelly said, “You did not show Scanlan and Kennedy much mercy.” Prisoner said, “If I had not shot them they would have shot me.” In reply to other questions, the prisoner said he had intended to shoot every one that escaped from the wreck of the train. Prisoner was asked if it was true about his shooting Fitzpatrick. He said, “Yes, it is true; I shot him.”
Cross-examined by Mr. BINDON.―I arrived at Glenrowan about 5 o’clock in the morning. First saw the prisoner about a quarter-past 7 o’clock. There was some firing. There were about a dozen constables there in the morning, besides the black trackers. There were 53 in the evening. I fired at a young fellow named Reardon. I fired at him because I thought it was one of the outlaws. The police fired into the hotel. I believe there were a number of people in the hotel, but I did not know of it at the time. After the boy was shot and I understood that there were people in the house, I called on them to come out. We fired in answer to firing from the house. Martin Cherry and a boy named Jones were shot. I was accused of shooting the boy. There was nothing but slugs in my gun. That boy was shot before I arrived. Never said to Mrs. Jones that if she would say that Ned Kelly shot her son I would forward her application for a portion of the reward to the Government. Never heard of such a thing before to-day.
Re-examined.―The boy Reardon recovered. Can’t say who shot Cherry.
Samuel Reynolds, medical practitioner at Mansfield, made a post-mortem examination on the body of Thomas Lonigan. There were two wounds―the one in the eye, the other on the temple, which was merely a graze. He had also a wound on the left arm, and one on the left thigh. They were all gunshot wounds. The wound through the eye was cause of death.
Cross-examined by Mr. BINDON.―The ball that struck the eye must have come slightly slanting. Did not think the other wounds were inflicted after death. I should say that Kennedy was standing up when he was shot, as he had the wound right in the centre of the chest. I did not make a regular post-mortem examination of Kennedy’s body. I extracted a bullet from Lonigan’s thigh. It was an ordinary revolver bullet.
Re-examined.―If wounds were inflicted before the circulation had actually ceased, it would be impossible to state accurately whether they were before or after death.
This closed the evidence for the prosecution, and the Court adjourned for an hour to allow Mr. Bindon an opportunity of considering whether he would call any witnesses. On the Court resuming,
Mr. BINDON stated that in the course of the case he had objected to certain evidence that had been tendered, and he wished to know whether his Honour would reserve a special case on the points for the consideration of the full court. He referred more particularly to the evidence given after Lonigan had been killed. He contended as the prisoner was not being tried for the murder of Kennedy or Scanlan, that therefore no evidence should have been given in regard to them.
His HONOUR said that if an act were doubtful or ambiguous, or capable of two meanings, the conduct of the person before, at the time or after the time of doing the act was admissible to show the motive and reason for his conduct. This evidence was admissible to show whether the shooting of Constable Lonigan were accidental or justifiable.
Mr. SMYTH then addressed the jury, reviewing the evidence on behalf of the Crown.
Mr. BINDON then addressed the jury on behalf of the prisoner. The evidence, he said, was in one sense elaborate, but the great bulk of it was quite extraneous matter. It would be the duty of the jury to exclude every thing from their minds but what related to the death of Constable Lonigan. What occurred at Euroa, Jerilderie, and Glenrowan was altogether irrelevant, and with regard to what occurred at Stringybark Creek, they had only the evidence of one witness. That one witness (Constable McIntyre), had given a very consecutive and well prepared narrative after the event, but he was in such a state of trepidation at the time of the affray, that he could not have made the minute observations he professed to have done, and could not possibly have picked out the prisoner from amongst the gang as the particular person who shot Lonigan. His statement was therefore to be received with discredit. The prisoner and his three mates were following a lawful pursuit in the bush, when a party of men in disguise, fully armed―policemen in plain clothes, as they afterwards turned out to be―came upon them, and an unfortunate fracas occurred, in which Constable Lonigan lost his life. Who shot that man no one could tell. McIntyre said that he saw the prisoner fire at him, but there were shots fired by others at the same time, and to tell which was the fatal bullet was a matter of impossibility. Only two men were alive who were in the fray, and it was simply a question of believing the statement of the one or that of the other. Unfortunately for the prisoner, his mouth was closed, and they had only the statement of McIntyre before them. That statement, moreover, was not only that of a prejudiced witness, but the corroborative evidence given was of most peculiar and unreliable character, being simply a variety of remarks made by the prisoner himself―remarks made either ad captandum, for the purpose of screening others, or for keeping the persons he had in durance in subjection. Evidence of this character was of a most illusory nature, and ought to have no weight with the jury. The prisoner was not the bloodthirsty assassin the Crown prosecutor had endeavoured to make out. Both before and after the shooting of the police he showed that he had the greatest possible respect for human life, for he had many previous opportunities of assassinating policemen, if that was his desire, and at Euroa and Jerilderie he never harmed one of the persons who fell into his power. The jury had an important and serious duty to discharge, and he had to urge them not to take away the life of a man on the prejudiced evidence of a single man.
His HONOUR, in summing up, said that the prisoner Edward Kelly was presented against for that he, on the 26th October, 1878, at Stringybark Creek, in the northern bailiwick, feloniously, wilfully, and with malice aforethought, did kill and murder Thomas Lonigan. Murder was the highest kind of homicide. It was the voluntarily killing of any person in the Queen’s peace by another person of sound mind, with malice prepense and aforethought, either expressed or implied. Malice was twofold. It might be proved by expressions made use of by the prisoner, which showed a malevolent disposition, and that he had an intention to take away the life of another man without lawful cause. It might also be proved by the prisoner procuring materials to cause the death of another, such as purchasing a sword, or a knife, or poison, and if those weapons or the poison were used, it was evidence from which malice might be inferred, unless there was some justification for their use. As, for instance, if a man bought a pistol intending to shoot A, and went out intending to shoot him, and if on the way he was assailed and overpowered by another with whom he had no intention of quarrelling and should kill him, he would be justified in using the pistol in self defence. If, however, having bought the pistol, he proceeded to carry out his original intention, and did so, it would be murder. And if two or three or more persons went out together with an intention of an unlawful character, they were all principles in the first degree, and each was liable to account for the acts of the others. So if four men went out armed intending to resist those in lawful pursuit of an object, and one of those four men interfered with those on their lawful business, and killed them, the four would be equally guilty of murder, and might be executed. Here four constables went out to perform a duty. It was said they were in plain clothes. But with that they had nothing to do. Regard them as civilians―he used the word because it had been made use of in the course of the trial, although he thought it inappropriate―what right had four other men armed to stop them? They had the evidence of the surviving constable as to what had occurred―that two were left by their companions at the camp―what right had the prisoner and three other men to desire them to hold up their hands and surrender? But there was another state of things which was not to be disregarded. These men were persons charged with a responsible and, as it turned out, a dangerous duty, and they were aware of that before they started. They went in pursuit of two persons who had been gazetted as persons against whom warrants were issued, and they were in the lawful discharge of their duty when in pursuit of these two persons; therefore they had a double protection―that of the ordinary citizen, and that of being ministers of the law, executive officers of the administration of the peace of the country. Whether they were in uniform or not, there was no privilege on the part of any person to molest them, and still less was there power or authority to molest them as constables. The jury had been invited to be extremely careful before relying upon the evidence of Constable McIntyre. He went further, and told them to be careful in considering the evidence of all witnesses. According to the law of this country, the principles of evidence were the same on all sides of the Court―at the common law, at the equity, and at the criminal side, with some few exceptions. As, for instance, in treason there must be two witnesses, although not necessarily to the same overt act. In perjury there must be generally two witnesses, or one witness sworn and certain circumstances deposed to on oath to corroborate him. There must be two witnesses to a will. Some documents must be signed by an attorney, some documents must be attested by a notary public; but with these and some other unimportant exceptions one witness was sufficient to prove a case on either side of the Supreme Court. McIntyre was the only survivor of this lamentable catastrophe. The jury would have to consider the manner in which he had given his evidence, and say whether they thought from his demeanour or mode of giving his evidence that he was stating what was not true. It was not his province to laud or to censure him, but if he had not escaped there would have been no survivor to give evidence to-day. The jury were properly told that the prisoner was not on his trial for the murder of either Scanlan or Kennedy, but he had admitted the evidence of what had occurred prior to the shooting of Lonigan, because the jury might infer from it what was the motive for shooting Lonigan, or whether the shooting was accidental or in self-defence. Besides the testimony of McIntyre, there were also the admissions made by the prisoner himself at different times, and at different places, to different persons. Two classes of those admissions were made at Euroa and Jerilderie, and the other at the time of his capture. On the first two occasions, the prisoner was not under any duress, and it was for the jury to say what motive he had in making the admissions. There was no compulsion upon him; he answered questions which were put to him when he might have held his tongue. These admissions were spoken to by five different persons at one place, by three at the other, and by three at the third, and it was for the jury to say whether these witnesses had concocted the story or not.
The jury then retired, and after deliberating about half-an-hour returned into Court with a verdict of guilty.
The prisoner, having been asked in the usual way if he had any statement to make, said:―Well, it is rather too late for me to speak now. I thought of speaking this morning and all day, but there was little use, and there is little use blaming any one now. Nobody knew about my case except myself, and I wish I had insisted on being allowed to examine the witnesses myself. If I had examined them, I am confident I would have thrown a different light on the case. It is not that I fear death; I fear it as little as to drink a cup of tea. On the evidence that has been given, no juryman could have given any other verdict. That is my opinion. But as I say, if I had examined the witnesses I would have shown matters in a different light, because no man understands the case as I do myself. I do not blame anybody―neither Mr. Bindon nor Mr. Gaunson; but Mr. Bindon knew nothing about my case. I lay blame on myself that I did not get up yesterday and examine the witnesses, but I thought that if I did so it would look like bravado and flashness.
The court crier having called upon a strict silence whilst the judge pronounced the awful sentence of death, His HONOUR said:―Edward Kelly, the verdict pronounced by the jury is one which you must have fully suspected.
The Prisoner.―Yes, under the circumstances.
His HONOUR:―No circumstances that I can conceive could have altered the result of your trial.
The Prisoner.―Perhaps not from what you can now conceive, but if you had heard me examine the witnesses it would have been different.
His HONOUR:―I will give you credit for all the skill you appear to desire to assume.
The Prisoner.―No, I don’t wish to assume anything. There is no flashness or bravado about me. It is not that I want to save my life, because I know I would have been capable of clearing myself of the charge, and I could have saved my life in spite of all against me.
His HONOUR:―The facts are so numerous, and so convincing, not only as regards the original offence with which you are charged, but with respect to a long series of transactions covering a period of 18 months, that no rational person would hesitate to arrive at any other conclusion but that the verdict of the jury is irresistible, and that it is right. I have no desire whatever to inflict upon you any personal remarks. It is not becoming that I should endeavour to aggravate the sufferings with which your mind must be sincerely agitated.
The Prisoner.―No, I don’t think that. My mind is as easy as the mind of any man in this world as I am prepared to show before god and man.
His HONOUR:―It is blasphemous for you to say that. You appear to revel in the idea of having put men to death.
The Prisoner.―More men than me have put men to death, but I am the last man in the world that would take a man’s life. Two years ago, even if my own life was at stake, and I am confident if I thought a man would shoot me, I would give him a chance of keeping his life, and would part rather with my own. But if I knew that through him that innocent persons, lives were at stake I certainly would have to shoot him if he forced me to do so, But I would want to know that he was really going to take innocent life.
His HONOUR:―Your statement involves a cruelly wicked charge of perjury against a phalanx of witnesses.
The Prisoner.―I daresay, but a day will come at a bigger court than this when we shall see which is right and which is wrong. No matter how long a man lives, he is bound to come to judgement somewhere. It will be different the next time they have a Kelly trial, for they are not all killed. It would have been for the good of the Crown had I examined the witnesses, and I would have stopped a lot of the reward, I can assure you; and I do not know but I will do it yet, if allowed.
His HONOUR:―An offence of this kind is of no ordinary character. Murders had been discovered which had been committed under circumstances of great atrocity. They proceeded from motives other than that which actuated you. They have had their origin in many sources. Some have been committed from a sordid desire to take from others the property they had acquired, some from jealousy, some from a desire for revenge, but yours is a more aggravated crime, and one of larger proportions, for with a party of men you took up arms against society, organised as it is for mutual protection, and for respect of law.
The Prisoner.―That is the way the evidence came out here. It appeared the I deliberately took up arms of my own accord, and induced the other three men to join me for the purpose of doing nothing but shooting down the police.
His HONOUR:―In new communities, where the bonds of society are not so well linked together as in older countries, there is unfortunately a class which disregards the evil consequences of crime. Foolish, inconsiderate, ill-conducted, unprincipled youths unfortunately abound, and unless they are made to consider the consequences of crime they are led to imitate notorious felons, whom they regard as self made heroes. It is right therefore that they should be asked to consider and reflect upon what the life of a felon is. A felon who has cut himself off from all decencies, all the affections, charities, and all the obligations of society is as helpless and degraded as a wild beast of the field. He has nowhere to lay his head, he has no one to prepare for him the comforts of life, he suspects his friends, he dreads his enemies, he is in constant alarm lest his pursuers should reach him, and his only hope is that he might use his life in what he considers a glorious struggle for existence. That is the life of the outlaw or felon, and it would be well for those young men who are so foolish as to consider that it is brave of a man to sacrifice the lives of his fellow-creatures in carrying out his own wild ideas, to see that it is a life to be avoided by every possible means, and to reflect that the unfortunate termination of your life is a miserable death. New South Wales joined with Victoria in providing ample inducement to persons to assist in having you and your companions apprehended, but by some spell which I cannot understand―a spell which exists in all lawless communities more of less―which may be attributed either to a sympathy for the outlaws, or a dread of the consequences which would result from the performance of their duty―no persons were found who would be tempted by the reward. The love of country, the love of order, the love of obedience to the law, have been set aside for reasons difficult to explain, and there is something extremely wrong in a country where a lawless band of men are able to live for 18 months disturbing society. During your short life you have stolen, according to your own statement, over 200 horses.
The Prisoner.―Who proves that?
His HONOUR:―More than one witness has testified that you made the statement on several occasions.
The Prisoner.―That charge has never been proved against me, and it is held in English law that a man is innocent until he is found guilty.
His HONOUR:―You are self-accused. The statement was made voluntarily by yourself. Then you and your companions committed attacks on two banks, and appropriated therefrom large sums of money, amounting to several thousand pounds. Further, I cannot conceal from myself the fact that an expenditure of £50,000 has been rendered necessary in consequences of the acts with which you and your party have been connected. We have had samples of felons and their careers, such as those of Bradly and O’Connor, Clark, Gardiner, Melville, Morgan, Scott, and Smith, all of whom have come to ignominious death; still the effect expected from their punishment has not been produced. This is much to be deplored. When such examples as these are so often repeated society must be reorganised, or it must soon be seriously affected. Your unfortunate and miserable companions have died a death which probably you might rather envy, but you are not afforded the opportunity―
The Prisoner.―I don’t think there is much proof that they did die that death.
His HONOUR:―In your case the law will be carried out by its officers. The gentlemen of the jury have done their duty. My duty will be to forward to the proper quarter the notes of your trial and to lay, as I am required to do, before the Executive any circumstances connected with your trial that may be required. I can hold out to you no hope. I do not see that I can entertain the slightest reason for saying you can expect anything. I desire to spare you any more pain, and I absolve myself from anything said willingly in any of my utterances that may have unnecessarily increased the agitation of your mind. I have now to pronounce your sentence.
His HONOUR then sentenced the prisoner to death in the usual form, ending with the usual words, “May the Lord have mercy on your soul.”
The Prisoner.―I will go a little further than that, and say I will see you where I go.
The court was cleared, and the prisoner was removed to the Melbourne Gaol.