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    What bones were they? The bones of a male adult aboriginal native, rather be- low the middle height.

    What was the condition of the bones which you saw? The righi blade? Have you any idea how that hole was formed? My belief is that it was from natural decay ; and having had my atten.

    Then a bullet may have gone through it, in the ti st instance, and the hole then decay? It is possible. No ; there was a small open- ing in the other that appeared evidently to have been caused by decay.

    In what condition was the skull? The skull was pe-fect with the exception of the teeth ; several of the front teeth were missing ; two or three were broken, and there tveie one or two split.

    In the lower jaw the front teeth were missin? How many front teeth are there in the human skull? Were the canine teeth missing?

    And the incisors were missing? The molar3 were fixed in the upper and lower jaw. Those that came under your notice were they all perfect?

    No ; three of them were imperfect. What was the damage done to those three? Of the fourth vertebrae, the greater part of the body was wanting ; of the fifth, part only of the spinous process and two of the transverse processes were found ; of the sixth, the top part of the body was gone, there was a longitudinal split down the spinous piocess, extending about two-thirds of its length, and a frac- ture of the neck of the transverse pro-.

    I should say it was caused by a ball passing from the fore, backwards, carry- ing away pait of the body or the middle vertebrae, and causing fracture of the.

    Were there any other injuries? Were there any other injuries on any of the other bones? There was a por- tion of the ribs missing, but nothing to indicate that it had been done by violence.

    Was there any hair brought in to you at the same time as the bones? Yes, evidently human hair. Did you examine any of the earth?

    How long, then, do you suppose those laid exposed since the body to which they belonged was alive? I think the bones must have been less than twelve months.

    I could not undertake to sayhow many months. I base my opinion of the length of time they had laid exposed upon the fact that the ligaments were partly in ex- istence and the fibrous tissues about the.

    You are quite sure that the injuries to the spinal column were not caused by the gnawing of dogs or any other animals? Quite certain. What position would a man be stand- ing in to have his left fore arm bones fractnred and the spinal column injured in the manner you have described?

    May it please the - Court, Gentle- men ofthe Jury; in all small commu- nities when a person well known and respected in society is suddenly ar- rested upon so grave a charge as that now under consideration, the occa.

    Such has been the case in our community with reference to the serious charge now brought against the prisoner at the bar.

    Great interest has been taken in this case ; its merits have been much discussed throughout the colony, and conclusions come to upon the issue which you have now to decide.

    Need I ask, you, gentle- men, not to allow any preconceived opi- nion to operate on your judgment this day, but to try this case according to the evidence ; to discard from your minds anything you may have read or heard, or any opinions you may have previously formed?

    Thank God, gentlemen, the prisoner is at last before a jury of his country ; aye, at last, after a weary and painful imprisonment of now nearly four months, he stands before you and has pleaded not guilty to the charge, putting himself upon his God and his country, relying solely upon the consciousness of.

    I do indeed, gentlemen, feel awed and moved by the solemn responsibility which now rests upon me, and I earnestly claim your serious attention for a few.

    I feel, gentlemen, that I have the whole power of the Crown to contend against. I feel that I have this to contend against : "W.

    Leake, Crown Solicitor. Parker and I have had the management of the prisoner's case, offers have been made by men to swear anything iu the prisoner's favor, provided they were paid at the same rate as the prisoners for the Crown were then being paid.

    The Crown indeed seem to have taken an extraordinary interest in this prosecution. We fiud them in the first instance denying to the prisoner the right which every British subject in any portion of Her Majesty's dominions possesses of being immedi- ately brought before the nearest magis- trate to answer the charge upon which he is arrested; but the Crown in this case, not content with dragging the pri- soner a distance of miles from his residence, almost past the doors of two Police Magistrates in his own district, they again, in the person of the Attorney General, exercise an unusual power and have him arrested upon a bench, warrant, immediately after he has been admitted to bail, and thus keep him in prison up to the present time.

    And what, after all this procedure, is the case they now put before you? The case for the Crown is this :-That the prisoner at the bar shot a native on his overland journey from Nickol Bay, supposing him to have stolen a saddle; shot him ia the back whilst running away.

    Before, gentle- men, I proceed to grapple with the case and the evidence brought forward by the Crown, permit me to explain the nature of the defence relied on by the prisoner.

    The Attorney General, in his opening, rightly informed you that where a homi- cide is committed, it is incumbent upon the party accused to prove that it was either excusable or justifiable ; the pri- soner's defence is that he was justifiable in what he did, and he rests that defence upon the statement in his journal, corro- borated as it has been this day by the witnesses, particularly the medical testi- mony.

    Let us see, then, whether, taking the statement in his journal to be true, and you will bear in mind he has never denied shooting a native at the place in question,-he was justified in using fire- arms.

    With regard to the distiction between excusable and justifiable homi- cide, it is this :-Excusable homicide is where a person is killed who had assaulted another, and the party assailed retreats or does all in his power to avoid it, and an absolute necessity arises for the use of a weapon to protect his own life, or to protect himself from such serious bodily harm as would give him a reasonable apprehension that his life was in danger.

    Justifiable homicide is when a felony has been committed and the persons having authority to arrest or imprison, and using the proper means forthat purpose, are resisted in so doing, and the party is unavoidably killed in the struggle : they may repel force by force, and need not give back or retreat, as in the case of excusable homicide.

    But if a private person arrest another for a felony, and cause his death, then justification will depend upon the fact of the party's guilt, which it will be incumbent upon them to make out, otherwise they will be guilty of manslaughter.

    Now this is the law of England, and, no doubt, of the. We know that when persons emigrate from England and take' possession of new countries, the people carry with them only such laws as are applicable to the peculiar circumstances of the colony they are about to inhabit, and were in force at the time in the mother country.

    We find him in the wild bush, miles from any white man's abode, in the midst of wild and ferocious natives and cannibals, with no Government protec- tion to fall back upon.

    A saddle is stolen by three natives a saddle in the bush on such a journey is much more valuable , he rides in pursnit of them to recover the same ; comes up with the thieves, finds portions of the stolen pro- perty upon them; Chum states two of them had portions of the saddle with them; arrests them; and endeavors to make them show him where the rest of.

    Surely, gentlemen, the Crown is not going to contend that the prisoner had no right to protect his pro- perty under these circumstances ; had no right to make the natives show him where the saddle was ; if so, what it is to become of our explorers ; what is to be- come of that noble enterprise of Mr.

    Is he, when a theft is com- mitted by the natives,-and it may be some invaluable article stolen from his camp,-is he, I say, to be compelled to return each time a distance of or miles to obtain the services of a policeman before he can go in pursuit of the unknown savages and endeavour to recover his property ; or is he to go after them and bring them the same distance before a magistrate, or to run the risk of being placed in that dock on a charge of murder?

    What should we think if we were told we had to go to Champion Bay to get a warrant each time a theft is committed, and that too through a track- less country.

    No, gentlemen, I cannot believe that you agree to such strict application of the law, to an application which must put a stop to settlement. Now with regard to the necessity for the use of fire arms ; we find that the native was about to throw his dowark; now you know, gentlemen, as well as I do what a very formidable weapon a dowark is in the hands of a native, and I shall adduce the evidence of Mr.

    Bibra, who is acquainted with the natives in the locality, and he will describe to you more particularly the nature of the weapons used by these particular tribes.

    There can be no doubt on your minds, after hearing the evidence of Dr. Bompas, that the native was shot when throwing that dangerous weapon, and not when running away as sworn to by the witness Chum.

    And, with reference to the Doctor's evidence, I cannot but remark upon a circumstance counected with the absence of the breast bone.

    Acoording to Dr. Bompas, the bullet, in ali proba- bility, passed through the breast bone. Where is the breast bone, gentleman, missing. Now, gontlemen, connect that with the circumstances admitted to by Piesse, that he put Wittenoom off the scent when he went to gather up the bones ; he took good care to secure the shoulder blades with the holes in them, because they supported the case for the Crown that the native was shot through the back; but he is not so careful to bring the breast bone which would have supported the statement made by the prisoner.

    What do we now find then? We find that a native was shot by the prisoner in the act of throw- ing a dowark, and that that native had a portion of the stolen property with him.

    Now, gentlemen, let me shortly draw your attention to some of the evidence adduced by the Crown, and point out to you how you can, from the inconsistencies and untruths, which I shall bring to your notice, come to no other conclusiou but thatit is entirely false.

    The first wit- ness was Mr. Murphy-ahighly intelligent, honest, and truthful-looking witness, I must say. We find, first of all, that this man was constantly quarrelling with the prisoner during the overland journey, that he had a fight with him, that he brought "a charge of assault against him at Champion Bay, which was dismissed ; that he summoned him for wages, which was also dismissed.

    We find also a strong variance between his statement and Chum's, with regard to the prisoner's starting in pur- suit of the natives. Murphy states, that Burges asked Chum to go with him; Chum went with him, I saw them start ; whereas Chum states he did not start nntil Sugary came for him about an hour afterwards ; then, again,q as to his statement of what the prisoner said to him when he returned after shooting the native, in the presence of Carrol, but which is distinctly denied by Carrol, " I let go at him, he dropped and never kicked.

    The peculiarity of the expression " dropped and never kicked," the word dropped is also used by Murphy upon two other occasions. It is rather singular the prisoner should make use of these expressions at three different times ; then again, Murphy's statement that the pri- soner told him one of the three natives held up prisoner's arm and he thought he might have been going to pull him off the saddle, not that he was, but that he thought he might have been going to.

    What three natives does he h ere allude to? I will tell you, gentlemen, he knows there were three at the camp the night the saddle was stolen ; he knows the prisoner went after the three, but he does not know or he does not recollect that the prisoner came up with seven na.

    Did the prisoner ever make such a statement to the witness? Did the prisoner ever say "One ofthe others started to run after the native who had just run away and he let go at him, he dropped and never kicked.

    Ac- cording to Chums evidence and the pri- soner's journal there were only two na- tives who were being brought to the camp when one ran away and prisoner shot him.

    Is it at all probable then that he and one of the others started to run. This shows the made-up story, and. Fitzgerald says the pri- soner told him he was bringing the na- tives back to the cart when one ran away the seeond made an attempt to run and he struck him with his revolver; the third made an attempt to run and he put a ball through him.

    You will observe that he also accounts for three natives, evidently being under the same impres- sion as the witness Murphy, in his state- ment before the committing magistrate.

    There is also another discrepancy r he stated, the second native made an at- tempt to run and he struck him with his revolver, but on being further questioned he says, " he said he struck him with the revolver because he was going to throw him off his horse.

    Which are you to believe gen- tlemen? I say then, gentlemen, it is impossible for you to give any weight to such testimony, to such an inconsistent statement.

    You will also recollect that this witness and Murphy both lived at Champion Bay, came down to Perth to- gether, and having been living together for the last four months, it is not at all unlikely therefore that they have con- versed freely upon this case and with reference to the evidence they were going to give.

    At any rate we have the fact that they agree in their evidence and both make the same mistake in account-.

    It is singular also that Fitzgerald uses the same ex- pression as Murphy-he dropped and never kicked. Now with regard to that clever witness, Mr.

    Chum Chum. In considering his evidence you will bear in mind his admission that he has been offered a reward to speak the truth by the Supt.

    You know well enough, gentlemen, what a native's idea of speaking the truth is. We know they will simply say all they think will please their employer, and nothing more.

    We also find that this man has, since he gave his information to the police, been in the service of the Government as a native t:acker.

    Now, what does he say? He first of all states he saw prisoner shoot the native in the back when in the act of running away; then he says prisoner told him so ; and now he says Murphy told him so.

    What are we to believe? Becollect, gentlemen, the doctor's evi- dence, that the native was shot in front, evidently when in the act of throwing his douark, and not in the back.

    Can you for a moment, then, believe this part of Chum's story? Again, h. Again he stated before the magistrate : " the pri- soner cut one of the natives across the face with his revolver, I saw it ; prisoner was not on his horse when he cut him.

    Again, with reference to the douarks, he posi- tively swore before the magistrate, the natives had douarks and wammeras ; to- day he swears they had none.

    Why does he swear to-day they had none? Simply because since he gave his evidence before the magistrate he has learnt that the prisoner states in his journal the native he shot was going to throw his douark at him.

    That is the reason he alters his story. It is needless for me, gentlemen, to do more than allude to his contradic- tion.

    When under cross-examination by my friend, Mr. Parker, his prevarication and fencing with the question as to what he told Jacob, you heard his statement, and I think you can but come to the same conclusion as myself, that this has been nothing more nor less than a wicked conspiracy between these three witnesses to swear away the life of an innocent man.

    I have already alluded to the wit-. I will not detain you longer. I have endeavored to place the prisoner's case in a fair way before you, and to the.

    I thank you for the , close attention you have paid to this case and the patient hearing you have given me.

    God grant you may, after consider- ing the case, come to such a conclusion as will restore my client to his friends, to his young and amiable, but broken- hearted wife, and to that position in so- ciety he has hitherto held; "You may then heal the wound which has already been inflicted, although I fear the sear.

    At the close of Mr. Stone's speech, the Court rose at twenty minuts to six o'clock, J and adjourned until the following day.

    Just think a little while and tell us exactly what Chum Chum told you about this affair ; tell us the very words he.

    Chum said, that when they were com- ing down in the afternoon they met some natives : they went a little further down and camped. In the night native come and take saddle away.

    In the morning Mr. Locke missed the saddle, and said to Chum, "come after me. Locke went first and Chum went after him. When Mr.

    Locke went to the natives. One of them catch him in the foot, and had douark in his right hand. As Mr. Locke was coming round again to his carts the natives got round him.

    So Mr. What did Chum say native did then? He said that he ran a little farther and then dropped. Did Chum say what kind of natives they were?

    He said that if he had not got there in time they would have killed. Cross-examined by the Attorney-Gene- ral-Did Mr. Locke ever tell you what took place?

    His Honor-How many times did he tell you this story? You say you were sleeping together in the same room. You understand there are seven nights in the week.

    Did he tell it to you every night? Parker-You are a son of Mr. William Smith, settler, down at Nedlands? And didn't return to camp until Mr. Burges and Chum Chum had come back?

    They were on the camp when I came back, all ready to start on to Hooley's. Were the carts close together when they started?

    Yes j about five or six yards apart. Burges he saw one of the natives catch hold of him by the leg, and attempt to.

    Do you remember any particular oc- casion when Muiphy and Mr. Burges had a quarrel? Yes, I do. I think Murphy afterwards charged Mr.

    Burges with assaulting him, and summoned you as a witness at the Ger- aldton Police Court? He did. What was the evidence you gave ; and what is the truth about this assault busi- ness?

    One day Murphy challenged Mr. Burges to get off his horse and fight. Do you remember the very words used by Murphy when he challenged Mr.

    Bur- ges? Did you ever have any conversation with Murphy on the road down with're gard to this affair of shooting a native i.

    Burges had no right to shoot the native, and that he would make him pay dear for it when he came. What were the words he used-He said, it seems strange about Burges shooting that native ; I don't believe he ever molested him.

    He wouldn't be par- ticular in shooting a white man, let alone a native. I will make him pay dear for it when I get down.

    Did you ever hear Murphy make use of any threat with regard to Mr. Burges, in the presence of Carrol-Not that I re-.

    Had those natives who came to the camp any douarks or wommeras with them-I saw one or two of them with douarks. What kind of weapon is the douarks generally used in that part-They are of two or three descriptions; some are about two feet long and of the thickness of a man's wrist ; and some of them are like a policeman's staff.

    Are they pointed-Yes ; some of them with sharp stone points; others with rounded points ; the stone being gummed to the point.

    Did you observe how the douarks you saw in the possession of the natives who visited your camp were made-I noticed that one of them had gum and stone on.

    And you refused to give evidence be- cause your expenses were not tendered to you-Yes. Ee-examined by Mr. Parker-Did you give the same evidence as you would have done had you appeared for Murphy?

    Parker-You are a prisoner of the Crown. You were out on pass to Bunbury a short time ago-Yes, on the 31st July ; and I remained in Perth over the 1st, 2nd, and 3rd August.

    On any of those days do you remember seeing a man named Murphy-Yes, I saw him at James' Hotel : either on the 1st or 2nd of August.

    In what state were you-I felt some- what indisposed from the effects of drink which I had partaken of on the previous night ; but I was perfectly sober at the time I saw Murphy.

    What did he say about Mr. Burges The first thing he said was "Halloa! Mick, it's a long time since I saw you ; why, it must be nearly seven years ago.

    How are you getting on. I said, rather indifferently. I didn't feel inclined to speak any more, being indisposed. He then said, I suppose you won't speak to a fellow now.

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