[murder - death in custody - military defendants in crime - drunkenness, no defence]

R. v. Hagan [1835] NSWSupC 92

Supreme Court of New South Wales

Dowling J., 13 November 1835

Source: Australian, 17 November 1835

Friday, November 13th. - Before Mr. Justice Dowling and a Military Jury.

John Hagan, a private in His Majesty's 4th regiment, stood indicted for the wilful murder of Michael Driscoll at Solitary Creek in the District of Bathurst, by firing a musket at him loaden with ball, on the 23d of September last.

It appeared on the day mentioned above, Hagan, with other soldiers were escorting a party of prisoners from No. 2 Stockade, at Cox's River, to Bathurst. On their way they stopped at White's Inn, Solitary Creek. They placed the prisoners in a shed and Hagan was appointed centry over them. There was a dray accompanying the escort, upon which a quantity of Rum was being conveyed to Bathurst. One of the kegs leaked and was taken off, for the purpose of being put into empty bottles; whilst this was being done the two Privates, (unknown to the Sergeant) had got to the Rum, and on Hagan being relieved, he had gone to the stable and drank some; he had also drank some rum at the Stockade, previous to their starting in the morning, enough to make him intoxicated. When he had been to the stable, he resumed his station as sentry. Hagan asked one of them for a pipe, who answered he had not go one, when Hagan cocked the musket, and said ``d--n your eyes, I'll shoot you,' and fired at the same moment. The Ball entered the left breast of Driscoll between the first and second rib, and came out at the back between the eight and ninth rib. Driscoll fell back and died instantly. Hagan then fell on his knees, and prayed to God to forgive him for having taken an innocent man's life.

The Prisoners had been perfectly quiet during the journey, no angry nor malicious feeling had been exhibited, but the witnesses all agreed that Hagan was very drunk, owing to which he had fired the musket. He had no malice nor any previous intention of injuring the deceased. A sergeant of the Regiment spoke as to character; he had known him four years and during that time he had been a very orderly soldier.

The Jury retired for nearly an hour, when they returned a verdict of Guilty. Mr. Attorney General having prayed for judgment, the Learned judge addressing the prisoner, said, the jury after having taken a long time to deliberate on your case have returned a verdict of guilty. There were few who had heard the case, but would be satisfied there had been no previous malice. It is true you were in a state of intoxication, but that in the eye of the law was no excuse, but on the contrary, you holding a place of trust sent for the purpose of taking charge of others, allowed yourself to get drunk and to kill one of those placed under your charge - it is my painful duty to pass sentence upon you. Your expressed sorrow, at the time, is certainly a manifestation of contrition, but that cannot avail you here; use then the few short hours which now remain in preparing yourself to meet that judge who alone can show you mercy. He then passed sentence of death in the usual manner and ordered him for execution on Monday Morning.

Notes:

See also Sydney Herald, 16 November 1835; Australian, 17 November 1835, for comment on the case: the prisoner was reprieved pending an inquiry. The alcohol was the property of two small settlers who were hawking it around the country illegally. It was forfeited.