EDWARD KELLY BEFORE THE POLICE COURT
(BY ELECTRIC TELEGRAPH)
(FROM OUR OWN REPORTER)
The preliminary examination of the case of Edward Kelly was resumed this morning by Mr. Foster, P.M., in the Beechworth Police Court. The prisoner was brought from the gaol, as before, in a cab about 8 o’clock in the morning, and was lodged in the courthouse cell. Long before the opening hour the court was crowded, and, as on the previous day, there was a large attendance of ladies. Mrs. Skillian and Tom Lloyd were in their former places, and were now accompanied by Dick Hart. In addition to the other police officers present, Sub-inspector Baber is watching the case on behalf of the detective department. Mr. C. A. Smyth, Mr. Chomley, and Mr. Gurner appeared, as before, for the Crown, and Mr. Gaunson for the prisoner.
Mr. Gaunson said that before the hearing of evidence was resumed he desired to call the attention of the Court to the method in which the public newspapers were speaking of the prisoner now standing on trial for his life. In yesterday’s Argus, for instance, a statement was made concerning both himself (Mr. Gaunson) and Mr. Zincke, the whole of which was absolutely untrue. This was grossly and manifestly unfair. Another respectable paper, the Ovens and Murray Advertiser, wrote about the prisoner as if he were something lower than a human being. If this kind of writing continued it would be the duty of the Court to commit some of the writers to gaol.
Constable McIntyre having been called, his examination by Mr. Smyth was continued. He said:―In the conversation the prisoner and I had at the log he said, “You know I am no coward. Those people lagged at Beechworth the other day had no more revolvers in their hands than you have at present. In fact they were not there at all―these are the men” (nodding towards his mates). I said, “You cannot blame us for what Fitzpatrick has done to you.” He replied, “No, but I almost swore after letting him go that I would never let another go, and if I let you go now you will have to leave the police force.” I said, “I will; my health has been bad, and I have been thinking of going home for some time. If I get these other two men to surrender, what will you do with us?” He replied, “You had better get them to surrender, because if they don’t surrender, or get away, we will shoot you, but we don’t want their lives; we only want their horses and firearms.” During this conversation the prisoner was keeping a watch down the creek. He had the two guns laid up against the log. I thought it might be possible, by a sudden spring, to get one of the guns in the event of the other men coming in sight. I therefore took a short step towards the prisoner, to be ready for a spring, and Hart, the man in the tent, cried out excitedly, “Ned, look out, or that ― will be on top of you.” The prisoner coolly looked up, and said, “You had better not, mate, for if you do you will soon find your match, for you know there are not three men in the police force a match for me. Are there any others out?” I answered, “Yes, there was another party to leave Greta.” He asked who they were, and I said I did not know, but that they were under the command of Sergeant Steele. At this time it was getting late―between half-past 5 and 6 o’clock―and I expected that Kennedy and Scanlan would shortly arrive. I therefore said again that I would try to get them to surrender if he would promise faithfully not to shoot them. A moment afterwards Kennedy and Scanlan came in sight, 100 yards down the creek. Prisoner said, “Hist! lads, here they come.” He said to me, “You stop at that log and give no alarm, or I will put a hole in you.” I went to a part of the log he pointed out, 10 or 12 yards off, and had scarcely time to sit down when Kennedy and Scanlan had come within 40 or 50 yards of me. They were on horseback, and their horses were walking slowly. I thought the gang were more than a match for us, and intended to try and get Kennedy and Scanlan to surrender. I therefore stepped towards Kennedy and said, out aloud to him, when five or six yards away from him, “Oh, sergeant, I think you had better dismount and surrender, for you are surrounded.” At the same time the prisoner cried out, “Bail up! Hold up your hands.” Kennedy smiled, and playfully put his hand upon his revolver, which was in a case on his side. Immediately he did so the prisoner fired at him, but missed. Kennedy’s face then assumed a serious aspect. I turned and looked at the prisoner and his mates. They came out from their concealment, ran up with their guns, each crying out, “Bail up! Hold up your hands.” When the prisoner fired at Kennedy he was behind the log, resting on his right knee. He then threw down his discharged gun, picked up the loaded one, and pointed it in the direction of Scanlan. I again looked at Kennedy, and saw him throw himself on his face on his horse’s neck, and roll off on the off side. At the time he did this about four more shots were fired. Scanlan, who had pulled up at about 30 yards from the prisoner, was in the act of dismounting when he first heard the call “Bail up.” In dismounting he fell on his knees, and caught at his rifle as if he were taking it off his shoulders over which it was slung in a strap. He endeavoured to get up on his feet, but again fell on his hands and knees, and when in that position he was shot under the right arm. The prisoner covered Scanlan with his gun, and fired at him, but three or four other shots were fired by the others at the same time. Seeing Scanlan fall I expected no mercy, and therefore caught and mounted Kennedy’s horse which was close to me. Before I mounted the horse was restless with the firing. I turned his head north, and he moved a full length of himself whilst I struggled to get into the saddle. Having mounted I got the horse to start. Kennedy must have seen me mount, but he said nothing. Whilst I was riding away, I heard shots fired, but at whom I could not say. I had seen that Scanlan was hit under the right arm, for I noticed a blood spot on his coat immediately after he was shot, and he fell over on his back. I made away in a northerly direction 200 or 300 yards, and being then out of sight of the camp, turned westerly towards the telegraph line between Benalla and Mansfield. As I rode I was knocked off the horse by the timber, and was in the bush all night. On Sunday morning I was as far from Mansfield as when I started the previous evening. I had got bushed. About 3 o’clock on Sunday afternoon I reported at Mansfield what had occurred to Sub-inspector Pewtress, who organised a search party. I joined the party, and we left Mansfield about two hours after I arrived there. It was almost dark when we started, and it was about 2 o’clock in the morning when we arrived at the scene of the murders. We found the dead bodies of Lonigan and Scanlan and made a search for Kennedy, but did not succeed in finding him at that time. Our tent had been burned down, and part of our property that was not burned was removed. The only thing that remained was a tin plate. Sub-inspector Pewtress came out in charge of the search party. About day-light Dr. Reynolds arrived, and made a post-mortem examination of the bodies. The bodies were picked up and conveyed to Mansfield. I was present at the magisterial inquiry held on the body of Lonigan. Dr. Reynolds gave evidence, and I saw some bullets he produced. One bullet was pointed out to me by dr. Reynolds as having been taken from Lonigan’s body. On the following Thursday I saw Kennedy’s body, which had been found, and brought into Mansfield. On it a magisterial inquiry was also held. Kennedy had a valuable gold watch when he left Mansfield. I saw it with him in the tent on Friday night. I never saw the prisoner again until at Glenrowan on the 28th of June last. When I arrived at Glenrowan the prisoner had been arrested. I had a conversation with the prisoner after his arrest.
Mr. Gaunson objected to this conversation being given as evidence, on the ground that it was illegal to extract evidence from a prisoner.
The objection was overruled.
Witness continued.―I went to Benalla lockup with Senior-constable Kelly on the Tuesday afternoon after the Glenrowan affair, and had a conversation with the prisoner in his cell. Senior-constable Kelly said, “Do you know this man?”―pointing to me.
Mr. Gaunson once more objected to this evidence, and characterised it as a blackguard proceeding to bolster up the charge against the prisoner.
Mr. Foster said that, as he considered that the evidence tendered was according to law, it would be received.
Witness continued.―The prisoner, in reply to Senior-constable Kelly’s question, said, “No; it is Flood, is it not?”
I said, “No, no; you took me for Flood the last time we met.” Prisoner then said, “Ah, yes; it is McIntyre.” I asked him, “Do you remember the last time we met?” and he replied, “Yes, I do.” I then said, “Didn’t I tell you on that occasion that I would rather be shot than tell you anything to lead to the death of the other two men?” The prisoner turned to Senior-constable Kelly, and said to him, “Yes; he told me he would rather be shot himself than bring the other two men into it. He was afraid they were going to be shot.” I then asked, “When I turned suddenly around I saw you had my chest covered?” Prisoner said, “Yes I had;” and I then said, “Yes, and when I held up my hands you shot Lonigan.” He replied, “No; Lonigan got behind some logs, and pointed his revolver at me. Did you not see that?” I answered, “No; that is only nonsense.” I then said, “Kennedy fired many shots at you,” and he replied, “Yes, he fired a lot. He must have fired nearly two rounds of his revolver.” I asked, “Why did you come near us at all, when you knew where we were; you could have kept out of the way?” He replied, “You would have soon found us out, and if we didn’t shoot you, you would have shot us. Our horses were poor, our firearms were bad, and we wanted to make a rise.” I then asked, “Did I show any cowardice?” and he said, “No.” We then left him.
Cross-examined by Mr. Gaunson.―I am a native of Ireland, and 35 years of age. I made a special application to the Chief Commissioner of Police to be allowed to go to Glenrowan, and was allowed. Between 4 and five o’clock on the Monday afternoon I had a conversation with the chief commissioner of police, at the Glenrowan railway station. He asked me if Kelly was much changed, and I said “No,” and that I identified him. This was after the house had been burned. I saw the bodies of two persons taken out of the fire, but I could not tell who or what they were―they were so burned. No one ordered me to interview the prisoner at the Benalla lock-up. I obtained access to the prisoner with Senior-constable Kelly. I needed not to have visited the prisoner had I been disinclined. The prisoner was wounded, and was lying down. He was seemingly sane. Neither the senior-constable nor I took any written notes of the conversation. I told Senior-constable Kelly what my evidence was to be as to our interview with the prisoner, and asked him if it was correct, and he said it was. There were a number of statements taken from me by newspaper reporters. My first report of the murders was given to Superintendent Sadleir. If I did not state in that report that Edward Kelly was the man who shot Lonigan and Scanlan, I should have done so. I was at the time in a very excited state. I never saw the prisoner or any of his mates prior to the murders. I recognised the prisoner, however, from a description given of him in the Police Gazette, where he was published as a man who was wanted for having attempted to murder Constable Fitzpatrick. I believe that the prisoner did attempt to murder Fitzpatrick, and I never told the prisoner that I believed that Fitzpatrick had perjured himself. I also recognised the prisoner from a strong likeness between him and the other members of his family. I also saw a photograph of the prisoner in Sergeant Kennedy’s hands. I do not know where that photograph is now; the prisoner may be able to tell you. It was taken in prison, some seven or eight years ago. In the Police Gazette the prisoner is described as having been born in 1856, but he looked much older in the photograph, for in it he appeared to have shaved. I will not swear that it was the photograph of the prisoner, but Sergeant Kennedy said it was. When we went to arrest Ned and Dan Kelly we expected resistance, but not that we would be attacked. I had no warrant, and I cannot say whether Sergeant Kennedy had one, or any of the other members of our party. When we had camped on the Friday night, Sergeant Kennedy told me that there were some kangaroos in the creek, and said I should have a shot at them. I went down, but returned without firing a shot. There was a reward of £100 offered for the arrest of Edward Kelly when we went out to arrest him and his brother. I did not understand that the reward was offered for the arrest of the two men dead or alive. We were ordered out to arrest them by Superintendent Sadleir. Fitzpatrick is not know a member of the police force. He has been discharged, but I do not know the reason. If he possessed truthfulness, uprightness, and decency, I believe he would not have been discharged from the force. Even if he possessed those qualities he might have been dismissed for an indiscretion. For the shooting of Fitzpatrick Mrs. Kelly and two of her friends have been convicted. Although Fitzpatrick has been dismissed from the police force, I have not heard of Mrs. Kelly’s sentence being commuted. I knew Fitzpatrick, and always found him to be a very decent fellow. When we were bailed up by the prisoner did not say, “We don’t want to take life, we only want you arms;” but I heard the prisoner say, “Fitzpatrick is the cause of all this.” I said, “But you cannot blame us for anything Fitzpatrick has done.” I did not say, “I know that.” If anything was said about Sergeant Steele having given evidence at the trial of Mrs Kelly, it has escaped my recollection. After the first instant when bailed up, I was quite cool. The instant Kennedy’s horse was abandoned I made use of it. The thought of escape never entered my head till I saw the horse going past me. I did not expect to escape. I conclude that Kennedy must have seen me get away; but I will not swear that he did. I did not look back, because if I had done so I would have struck my head against the timber. For all I know, therefore, Kennedy may have been shot instantly. I cannot say what is the feeling of the police towards the prisoner. I cannot say whether any of them desire him to be acquitted or convicted.
Mr. Gaunson said he would now leave the witness to be turned inside out by a better man in the Supreme Court.
The Court, at 1 o’clock, adjourned until 2 o’clock. On resuming.
Mr. Gaunson proceeded once more to cross-examine Constable McIntyre. The prisoner said to me at Stringy-bark Creek, “What brings you out here at all? It is a shame to see you, big-strapping fellows, in the loafers’ billet of policeman.” The prisoner, I believe, also said, “If you get them to surrender, we will handcuff you during the night and let you go in the morning; but you must go on foot, for we want your horses as well as your fire-arms.” He likewise said, “We will let you all go in the morning.” Scanlan was shot when on his hands and knees. I never told the reporters that he was shot while making for a tree. I was annoyed by the reporters making suggestions to me and then taking anything for an answer, and I cannot say exactly what I told them.
There was too much published about the matter, but I do not think there has been too much published so far preventing the prisoner having a fair trial. I mean that what was published tended to the glorification of the gang. Dan Kelly carried a single-barrelled fowling-piece, an old cheap gun of common bore. I don’t know what it was loaded with. I can’t say if there was anything in it except powder. I did not see him fire, but I heard him discharge it, and then saw the smoke curling up from his barrel. I saw smoke issuing from the gun held by each of the four men. I could not say what object Dan Kelly fired at. I can’t swear that he fired more than once. I believe it was a double-barrelled gun that Hart carried. It appeared to be an ordinary sporting gun. I did not see him fire, but heard a report from where he stood. When they advanced and fired on Kennedy they were about 20 yards distant. I don’t know how Hart’s gun was loaded. Byrne had an old-fashioned gun, with a larger bore than any of the others. I saw the prisoner Edward Kelly discharge that gun at Kennedy. That was when he missed Kennedy. The gun that was loaded with bullets by the prisoner in my presence was the one used latterly by Byrne. I won’t swear that the prisoner fired at Scanlan, but I saw him point his gun at Scanlan and heard his gun go off. Kennedy’s dismounting from his horse and the shooting of Scanlan were almost simultaneous. I heard three shots together, and one immediately afterwards. Scanlan at the same time fell. I now saw that we were all to be shot. I immediately seized the opportunity to escape. I have never seen any of the guns used at the murders since.
Samuel Reynolds, legally-qualified medical practitioner (surgeon), residing at Mansfield, examined by Mr. Chomley, said,―I was present at a magisterial inquiry on the body of Lonigan. I first saw the body at Stringy-bark Creek, early on the morning of Monday, 28th October. The deceased was lying on the ground on his back. I made no examination then, except to see that the deceased was dead. A few minutes afterwards I saw Scanlan’s body. There was a wound on Lonigan’s face. I made the post-mortem examination on the following day in Mansfield. I found four wounds―one through the left arm and one in left thigh, one in the right side and one the inner side of the right eyeball. I looked upon them as bullet wounds. The wound on the arm was simply a hole through the arm as distinguished from the forearm. As to the one on the thigh, the bullet travelled round the thigh under the skin, nearly to the inside, where I found it and extracted it. The wound on the temple might be described as a graze. I traced the wound in the eye through the bone into the brain. I was satisfied it was embedded in the brain, as there was no outlet for it, and did not search for it further. This wound must have occasioned death in a few seconds. The last witness, McIntyre, was present when this body was found, and he pointed it out to me as that of Lonigan. I also made a post-mortem examination of the body of Scanlan.
Cross-examined by Mr. Gaunson.―The graze on the temple was a minor wound. I judged from its sharp character that it was a bullet wound. That, of course, was only a supposition. The wounds on arm and thigh would not have caused death. I left the bullet that entered at the right eye in the brain.
Constable McIntyre’s depositions were then read over and signed by him. This occupied the remainder of the afternoon.
Mr. Foster, P.M., addressing McIntyre, then said,―As some comments have been made as to the manner in which you have given your evidence, I think it is only right that I should express my opinion on the subject, and it is that you have given your evidence intelligently, and, as far as I am able to judge, fairly and honestly.
Mr. Gaunson.―I need not say that remarks of this kind are very unusual, and I object to them, because I do not think that he has given his evidence fairly.
Mr. Foster.―I have thought it right to express my opinion.
Mr. Smyth.―And I think it is undoubtedly the opinion of every one in the court.
The further hearing of the case was postponed until Monday at 10 o’clock. The prisoner as usual was conveyed in a cab to the gaol by Sub-inspector Baber and an escort of two mounted troopers.
Kelly appears in court with a black coat, light trousers, and white shirt. He is generally carried along the passage leading from the court-house cell to the dock. He then hops to a chair in the dock and sits down. On Saturday, the weather being cold, he was supplied with an opossum rugs to keep his legs warm. He saw a gentleman making arrangements to sketch his likeness, and immediately covered his body with the rug with the view of preventing his figure being drawn. His demeanour is quiet, but he manifests his interest in the evidence by smiling and looking significantly to his friends whenever a point is made. At his last interview with Mr. Zincke, he requested a gentleman to send him a grey soft-felt hat, bushman’s style, and a bottle of hair oil, so that he might complete his toilette properly before appearing in court and before the public, Mr. Zincke, however, having been immediately superseded thereafter by Mr. Gaunson as the prisoner’s attorney. When he was being conveyed from the court to the gaol, he said to the police officers in charge, “You think you are very smart, but I am in a position to drop dead in two minutes whenever I like.” He of course referred to the care which is being taken to prevent any private interview between him and his friends. After entering the gaol his eye caught the gallows, and he remarked, “What a pity that a fine fellow like Ned Kelly should be strung up there.” Mrs. Skillian, his sister, and Tom Lloyd left the court on Saturday afternoon, and returned by train to Glenrowan, en route for their homes near Greta. Mrs. Skillian is said to have returned home for the purpose of relieving Kate Kelly, who has been keeping house for her sister during her absence. Dick Hart, and two of the Byrnes, who have likewise been attending court, have also left. When the youngest Byrne entered the court the officer at the door checked him, asking his name. He curtly replied, “The same name as my father.” The man who in all probability made the boots of the gang is also here. Mr. Wertheim, the landlord of the Hibernian Hotel, states that about two and a half months ago Ned Kelly called at his place early one morning, and had a nobbler of gin. He did not know the outlaw then, but he at once recognised him when he saw him in the police-court. It is now positively known that when the gang went to Jerilderie they started from the Buffalo Ranges, crossed the Little River near its source, then the Murray. A Chinaman who had been beaten with a stick by Joe Byrne previous to the outlawry of the gang met with them on their way, recognised Byrne again, and talked with him, and subsequently reported his adventure to the police.
When Mr. Gaunson stated in court on Saturday that a report regarding the Kelly case which appeared in Friday’s Argus was absolutely untrue, he omitted to mention that he attacked the reporter of The Argus on the subject on Friday night in the Hibernian Hotel; that The Argus reporter asked him to talk the matter over coolly; but that he (Mr. Gaunson) avoided calm discussion, and commenced speechifying in his characteristic style, walking at the same time towards the door, and leaving before one word could be said in reply. The only statement in my report which may not be literally correct is the one that Mr. Zincke was asked to act for the prisoner in company with Mr. Gaunson. That statement was made to me in good faith, and although it is comparatively immaterial, I may say that if it is not literally correct it is not absolutely untrue, as has been already explained. The friends of the prisoner have a great desire to have a private interview with him, and the belief is they have two objects in view, viz., first―to learn from him where the money secured by the gang has been planted; and second, to supply him with some means of escaping the gallows. It may be here stated, however, that Kelly says that he has made good provisions for his mother.
On Saturday Mr. Gaunson telegraphed to the Chief Secretary, asking that the order forbidding anyone to see Kelly in prison be cancelled. He received the following reply from Mr. W. H. Odgers, the under-secretary:―”The Chief Secretary declines to vary the order of his predecessor at the present time.” To this Mr. Gaunson has sent the following rejoinder:―”As affecting the right of the subject generally, I am bound respectfully to say that the order is unconstitutional, because Kelly is not convicted, but merely an accused person awaiting trial. It is, moreover, grossly illegal, and a violation of the rights of common humanity; therefore I respectfully ask that the order may be cancelled, and the ordinary course of the law followed with regard to the accused.” To this no reply has yet been received.
Kelly has been making a number of statements about his career, but many of them are so contradictory that it is difficult to distinguish what is true or false. This, however, is proved, that for some time the gang lived in a house that was frequently covered with snow, and that Kelly had to clear the snow off the roof to prevent it from falling in. The conclusion, therefore, is that at one time the gang lived either in the Buffalo or Bogong Ranges. The following narrative can also be taken as a statement of facts:―About four months ago, or at the end of the harvest season, two men were out opossum shooting some three miles from Wangaratta. One of them was named Smith, a carrier, and the other was named Morgan. As they were wandering through the bush near the Three-mile Creek, and in the vicinity of a house which is tenanted by relatives of the outlaw Hart, they saw two men approach them behind the trees. Smith said to Morgan, “Let us see what this means,” and they advanced on the men. They then saw that one of the men had a striking resemblance to Dick Hart. They at first, in fact, concluded that he was that individual, and sang out, “What is the use of larking in this way?” The two men then came out from behind trees and bailed them up. Both carried firearms. One was then recognised as Steve Hart, the outlaw, and the other was a stranger, who was certainly not one of the outlaws. The stranger carried a rifle and two revolvers, and assisted Steve Hart to bail-up Morgan and Smith. The four then went to Hart’s house. There Dan Kelly was found washing his head and chest. Shortly afterwards Byrne turned up, and a general conversation ensued. The circumstance of Morgan and Smith mistaking Steve for Dick Hart occasioned a laugh. Supper was provided, in the form of steak and onions. The strange man stayed outside most of the evening, but he eventually entered the house, and reported that the “captain” was coming. Soon afterwards Ned Kelly entered, and the company passed a jovial evening. Ned stated he had missed his way, and had almost walked into the lion’s mouth, for he had stumbled upon a railway crossing where a gatekeeper lived. Mrs. Hart and her daughters were present, and it may be mentioned that Morgan was a relative of the Harts, his mother and Mrs. Hart being sisters. There was another person present, a sympathiser who was armed with two revolvers, and who assisted in keeping Morgan and Smith in subjection. Smith was allowed to go at about 11 o’clock on account of his wife and family, but the sympathiser referred to made him first kneel down and swear that he would give no information to the police, gave him two £5 notes, and firing a revolver over his head, said that if he split upon them he would be shot like that. Ned Kelly was asked who the strange man was, and he replied that he was a man they had on trial as an associate, but one who he did not think would suite. The gang left at 2 o’clock in the morning, and Morgan was kept under surveillance by sympathisers for several days. The matter was not reported to the police until a month had elapsed, when it was reported the gang and their friends suspected Morgan, and he having heard of this has not been seen since. From the above statement it will be seen that at one time there was a fifth member of the Kelly gang, and that a certain sympathiser was once acting with them when armed. Something further will be heard of this in course of time.
According to the information received about the manufacture of the armour used by the gang at Glenrowan, it was made in the vicinity of Greta. They tested it by firing balls at the inside of it with rifles, and the marks they made in this way are easily distinguished.