NEWS ITEMS
1872 - BATHURST CIRCUIT COURT. TUESDAY, OCTOBER 24TH, 1872.(Before His Honor Sir Alfred Stephen C.J.)
HIS Honor took his seat on the Bench at ten o'clock a.m.
The Barristers present were Mr. J. G. J. L. Innes, (Solicitor General), W. B. Dalley, —— Davis, Dr. Belinfante, C. Pilcher, D. Buchanan.
Solicitors:— Williams (crown solicitor), J. N. McIntosh, S G. Fletcher, W. T. A. Shorter, (Dubbo). W. West, W. Morgan.
The Court having been opened by the crier, the proclamation against vice and immorality was read by the Judge's Associate (Mr. E. Deas Thompson).
Before the jury were called, his Honor said there was reason to believe that the sittings of the Court would extend over next week, as the calendar was unprecedentedly heavy, at any rate, it was extremely heavy. The course he (his Honor) intended to pursue was as follows:— The present panel of jurymen would be discharged on Saturday night, and on Monday morning a fresh panel would be called. That panel would attend during that week, and the jurymen discharged on Saturday night would again attend on Monday week, unless notified to the contrary. He (his Honor) intended to sit each morning at nine o'clock, and adjourn each evening if possible, at six o'clock.
George A. Wray, Thomas Atkins, and William Timothy Atkins (summoned as jurymen) claimed exemption from service as they were Volunteers.
His Honor granted the application, but said he hoped that the law would soon be altered, making it necessary for the Volunteers to give notice to the Magistrates, before the sitting of the revision court, so that their names could be struck off the roll. The present applicants were exempt, unless they chose to volunteer for this service as they had done for the other.
MURDER.
George Graham was indicted for that he, on the 15th July, 1872, at the Canadian Lead, near Gulgong, did feloniously, wilfully, and of his malice aforethought, kill and murder one David Bernard Querril, a child of tender years. The prisoner pleaded Not Guilty, and was defended by Dr. Belinfante.
Mr. Innes opened the case for the Crown, and in the course of his remarks alluded to the possibility of the jury returning a verdict of manslaughter.
Sergeant O'Donnell deposed: I am stationed at Gulgong; on the 20th July I received certain information from the undertaker, Mr. Curtis; in consequence of that information I ordered the body of a child to be brought to the barracks; It was so brought, and Dr. Ramsay held a post mortem examination on it; I then went to prisoner's house at the Canadian lead, and asked him to come to the residence of Mrs. Querrill; he said "has this woman been saying anything about me;" I said "what woman ?" He said "The woman to whose house we are going;" he then remarked; "The woman have been telling me that I was fighting with the man;" the woman Querrill is, I believe, separated from her husband; we went to the house, and Mrs. Querrill came outside; she pointed out prisoner, as the man who had assaulted her and the child; I then took him into custody; when on the road to the lock-up, prisoner said "She would have settled it for a couple of pounds."
To Dr. Belinfante: I know nothing bad about prisoner; I heard the name of Billy the Bull mentioned at the inquest.
Mary Querrill deposed: I have been married fourteen years; my first husband's name was Carroll; I am not married to Querrill, but have been living with him for seven years; we have been separated for some time; I have four children; on Monday, 14th July, I was living at the Canadian Lead; I had a baby seven days old; the prisoner came to my place on that day; I was going to bed, and had the baby in my arms, when I heard a man's step in the skillion room, and sent my eldest boy to see who it was; the two boys went out and asked him to go away, but he would not; I spoke out and told the boy to go for some-one to take him away; the oldest boy said it was prisoner; the boy came back, and I stayed till he came back; I then went out into the skillion, and prisoner said to me. "You —— what do you want;" he then caught hold of me and struck me, saying "I will kill the —— kid;' he then took hold of the child and shook it violently; I was very weak, and could not resist him; I had hold of the child when he was shaking it; prisoner was sober; so was I; there was a light in the place when he struck me, and I could see him; I got away and ran over to Mrs. Egan; I heard of a fight between prisoner and another man, but did not see it; the child died on the Thursday morning; it was a healthy child, although it was a seven months' child; it did not take the breast so well after the shaking; about an hour before its death the child had convulsions; it was lying beside me when it died; the child never had a fall from the bed; it was never injured in any other way than by the shaking it received from the prisoner; the child died in my arms; I noticed two blue marks on the child's forehead after death — about an hour after it had died; the skin was not broken; I saw them before the undertaker came; the child had been christened by Father O'Donnell; I was two days in bed after the beating, and could not report the matter to the police; the child might have been knocked against the tubs by prisoner.
To Dr. Belinfante : I never saw prisoner strike the child; when the undertaker came I told him the child died of convulsions, and told him to register it as having died from natural causes; Mrs. Egan took the child away to get christened at Gulgong, on the morning of the assault; she took it away in the morning and brought it back at 9 o'clock in the evening; the marks were then in a bad state; my son and Mrs. Egan's daughter went with her in a spring cart; I noticed no marks on the child's forehead when it was alive; Mrs. Egan fed the child with a spoon that day; I gave my name as Querril at the inquest; the advertisement which is now shewn to me in the Gulgong Argus, was put in by me, and I put an answer to it in the next issue; I don't know whether my husband is dead; I don't know Billy the Bull; I have been away from Querrill about four months; I am not keeping a shanty at Home Rule, and sly-grog selling; I have a slight knowledge of James Hayes; I have not sold any grog to him within the last three months; prisoner, was in the skillion room when I went out to him there were tubs and other things in the room; I was standing near the door and the prisoner was opposite to me; my boy was not in the room when prisoner struck me; I did not say at the inquest I left the child in bed when I went out; I told Mrs. Egan that as near as I could guess, the child died in convulsions; I think still that the child died in convulsions; I can't say that the prisoner struck the child or injured it; some times I have left the child alone in the bed while I was about my work; I did leave the child in the bed between the Monday and Thursday; I had no conversation with my boy last night about the case; I have not spoken to him at all about the evidence he has to give; I know prisoner and a week before the child's birth I gave him two oranges; a man was with him whom I do not know; the man now in court is like the man who was with him; he did not come into my bedroom.
Re-examined: I never left the child for more than a few minutes at a time; the child was only just brought back by Mrs. Eagan when I got the beating.
John Edward Carroll, a lad of eleven years of age, answered satisfactorily as to his knowledge of the nature of an oath, and was then sworn.
He deposed as follows: My proper name is Carroll, but I sign my name as Querrill; in July last we were living at the Canadian Lead; I saw prisoner, whose name is Graham, one Monday morning; Mrs. Eagan and I went to get the baby christened and came back about half past seven; mother stayed at Eagan's half an hour, and then came home; when we were going to bed, a man knocked at the door, and I looked through the cracks in the door and told mother it was "yorkey," meaning prisoner; he was sitting in the skillion room; he would not go out, and mother came out; prisoner then struck mother and caught hold of the baby and shook it, saying he would kill the —— kid; mother screamed out, and got away; prisoner afterwards had a fight with a man called "Billy the Bull;" I saw prisoner shake the baby violently, but did not see him strike it; mother's face was blackened and she had to stay in bed two or three days; I was with Mrs. Eagan all the day when she had the baby; the baby received no injury of any kind when it was with her; mother did not provoke prisoner when he struck her; I am sure prisoner is the man; I remember all this myself; I saw baby when it was dead, and saw a black mark on the forehead; prisoner let the baby go and stooped down to get a piece of wood, when mother got away.
Mrs. Querrill, recalled by Dr. Belinfante : I never sent my boy with a message to Mrs. Graham.
The boy was then cross examined; My mother came out with a bolt in one hand and the child in the other; prisoner was standing between my mother and me, and I could not see my mother; I was standing outside the skillion and could see prisoner shake the child; I was not told to use the word "violently;" (witness spelt the word); I never saw the prisoner at my mother's place before; my mother used to sell lemonade; the road from Gulgong was not very bad, and there was not much jolting; I have not spoken to my mother about this case at all; my mother sells groceries, but not grog, and I never saw Hayes or Kelt at the shop, nor any other men; I might be at school when customers come in; Mrs. Egan's daughter nursed the baby in the cart, but did not injure it.
Ellen Eagan deposed : I was living with my husband at Gulgong; I took Mrs. Querrell's child to be christened, and had it in my charge all day; the child came to no hurt while I had it; I brought it home at 8 or 9 o'clock, and gave it to the mother; on the same night she came crying to me, and said that Yorkey had struck her; she had the child in her arms; I saw Yorkey, who is prisoner, in the street after that; she said nothing about the child being injured; I did not see the child again until after its death; Mrs. Querrill had a black eye when she came over to me; when I heard that the child had died I went over; I asked her what those marks on its forehead were and she said she did not know, but that the child had died of convulsions.
Cross-examined : I don't know that Mrs. Querrill keeps a shanty; I never bought grog at her place; she never bought any at my place; my husband has a public-house; I never saw her drunk; I saw the marks on her face the night of the assault; I did not say at the inquest that I saw no marks on her face until the Thursday.
(The depositions were here read by the associate.).
I now remember that I did not see the marks until the Thursday; I did not see any marks on the child's face before its death; Mrs. Querrill did not accuse Graham of having caused the child's death; the child was a lean, weak infant.
To his Honor : I did not see the mother on the Thursday until the middle of the night; her face was then blackened; I did not tell the coroner that I saw her face black on the Monday night, on the second occasion of her coming to me after the assault; the prisoner bears a good character.
James Eagan deposed : I am husband of last witness; I remember that my wife went to get Mrs. Querrill's child christened; on that night I heard Mrs. Querrill screaming; I heard one of the children say, "Don't strike my mother;" soon after she came over to my house and said that prisoner had struck her; I saw the prisoner the same night fighting with a man called Billy the Bull; that was about an hour after I heard the screams.
William Courtenay deposed: I am a labouring man; on the night of the assault I heard a woman screaming; the sound was coming from the direction of Mrs. Querrill's; I saw a woman shortly afterwards running over to Eagan's; I saw a man standing near to Mrs. Querrill's that night, and fought with him; I was the worse for liquor and could not swear that prisoner was the man; they called him Yorkey.
William O'Brien deposed: I am a miner on the Canadian Lead; on Monday night, 15th July, I was in Eagan's, and a woman came running in saying that she was hit by some man; I went out and I saw prisoner and Billy the Bull, last witness, fighting; I was not quite sober that night; the woman had some sort of a bundle near her bosom like a baby.
John Henry Dufty, miner, deposed that he was standing near Mrs. Querrill's house on the night in question and heard screams; I went round and met Mrs. Querrill and she said a man had assaulted her; I ran round to the back of her house and saw prisoner standing near with some persons around him; I went to see if any thing was serious, and found the woman with the child at her breast; I then went back and said that nothing was the matter, and prevented the fighting that was going on.
Wilson Ramsay deposed; I am a legally qualified medical practitioner and practice at Gulgong and Mudgee; I was called upon in July to examine the body of the child at the police barracks Gulgong; the child was coffined and about being buried; on the child's forehead there appeared a bruise over the frontal bone; I felt an indentation, and on making a post mortem examination found a depression of the skull, and a quantity of extravasated blood between the dura mater and the brain which pressed upon the brain; the bone of the skull was not fractured, and the indentation could have been produced by a blow from a man's hand; the working of a child in convulsions would not have produced the depression; if the child had been struck on the Monday, it is possible for the wound not to have shewn until the Thursday.
To a juror : The child appeared fairly nourished.
Cross-examined: The child was small, and appeared like a seven month's child; the death was caused by external violence; I stated at the inquest that the discoloration would appear in life; I say so now; I say also that it would have been noticed by the mother, when the child was alive; if I had examined the child with the knowledge that the child had taken the breast to within an hour of its death, and had not seen the indentation, I would have believed the mother's testimony that the child died from convulsions, and that the extravasated blood was caused by convulsions; discoloration favors the assumption that death resulted from disease rather than violence; it is utterly impossible that the jolting of a cart could indent the skull; the child's bones, were friable and could not be broken; they might be bent; I don't remember saying at the inquest anything about the indentation.
(The witnesses depositions taken at the inquest were here put in and read.)
I can't say why I did not mention the indentation, I have been employed by the police to examine bodies for some years; in deaths from violence extravasated blood is as likely to be found between the skull and the dura mater as between the dura mater and the brain; if I said at the inquest that convulsions would not produce internal extravasation or external discoloration, I said that which was wrong; the internal hoemorrage might have taken place very slowly and the child could have taken food during that time; the indentation would naturally have produced compression of the brain from the first; I do think it possible that compression could exist for a day without producing coma.
Re-examination : I am sure the indentation was there, and I may have said so at the inquest; although it has not been put in; the discoloration was very slight and must have come on gradually, if it had been the immediate result of a blow the child would have died at once.
This closed the case for the crown.
Upon his Honor again taking his seat upon the Bench, Dr. Belinfante called and examined Dr. Machattie, who deposed: I have been in court during the trial, but have not spoken to you as to the evidence I shall give; as a general rule when extravasation is produced by external violence, it is found between the dura mater and the skull, and not between the dura mater and the brain; if there was discolouration it would show that there was external violence, and would favor the assumption that the blood was outside the dura mater; as a general rule where extravasation is found between the dura mater and the brain it is caused by internal disease; extravasation comes on suddenly when it is caused by violence, but when caused by disease it generally comes on gradually; there are exceptional cases; where extravasation goes on gradually it is concluded to arise from internal disease; I think if there was an indentation on the skull, as described by Dr. Ramsay, it must have been caused by external violence; if that indentation had been caused by violence, the child would not have been able to take the breast, at any rate, such is my experience; if compression of the brain had existed the child would have been in sensible— in a state of coma; I have seen cases of severe concussion of the brain where the patients have been insensible for a time, but have recovered; concussion is not so severe as compression; if the indentation had been made three or four days, the child must have shown symptoms of compression sooner than it did, and it must have shewn itself while the child was in life; I cannot reconcile the evidence of one of the witnesses, who says he saw the child at the breast an hour after the assault, with the supposition that the indentation spoken of by Dr. Ramsay, had then been caused; it is almost impossible for a child to live three or four days after receiving the injuries described by Dr. Ramsay.
Cross-examined by the Solicitor General: I was sitting by the side of Dr. Belinfante while this case was going on, but I only suggested certain questions to be put to Dr. Ramsay, for the purpose of making plain certain statements made by him; I have not had many cases similar to this, where children have died from injuries to the brain, I have had some; I have known seven months children die in convulsions soon after birth; I have known convulsions brought on by a child falling out of bed; I made a post mortem examination of one child who died in this way, and found extravasatation, but no indentation of the skull; there are a few internal diseases that will produce extravasation of blood; extravasation would take place speedily when caused by external violence; in examining a child, if I found such appearances as those described by Dr. Ramsay I should conclude that the child met with violence; I never heard or read of a case where a child who had received injuries like those described living for three or four days afterwards; such cases may have existed; I have known cases where persons have walked some miles after the skull has been fractured; the compression of the brain, if compression existed must have been caused immediately upon the depression of the skull; the fact that the child was able to suck was a proof of sensibility; it could not do so if in a state of coma; there is no evidence that compression of the brain existed, as Dr. Ramsay did not see the child alive.
Re-examined: Assuming that there was no depression in the skull, the appearances described were consistent with death from natural causes; if the child took the breast up to within an hour of its death, it may be inferred that the injury was done somewhere about that time; I am acquainted with the disease called Potts' puffy tumour on the skull, but the apparent indentation is produced by the rising of the scalp on the part injured, leaving a feeling of hardness and sharpness around the edge of the injured part.
John Hayes deposed: I know Mrs. Querrill she keeps a shanty at Canadian Lend, and sells grog; men are in the habit of going there for grog; I have seen parties pay her for grog; Mrs. Querrill told me about the assault; she said she left the child in bed while she went to prisoner in the skillion; I have known prisoner for some time; he is a respectable man.
Cross-examined : I do not know if he is quarrelsome; I was at Mrs. Querrill's on the Wednesday when she spoke about the assault; this happened before the child died; there is a door leading from the skillion to the yard; I have seen brandy and wine sold by Mrs. Querrill; I have spoken about this case to Mrs. Graham and she subpoened me.
To his Honor: I went into the shanty with a friend who was very intimate with Mrs. Querrill.
James Kelt deposed : I was at Mrs. Querrill's about a fortnight before the assault, with prisoner; she gave him two oranges to go home, and I remained there; I have known prisoner seven or eight years, and he has always borne a good character.
This closed the case for the prisoner.
Mr. Innes then called, Dr. Grant, who deposed: I am a legally qualified medical practitioner, of thirty years practice; Pott's puffy tumour is a particular appearance on the scalp arising from a blow producing indentation, and it may be without coma and without symptoms of compression.
Cross-examined: Potts says that when there is an indentation without insensibility, the blood will be found outside the dura mater.
This closed the evidence in the case.
Dr. Belinfante addressed the jury for the defence. The Solicitor General replied. His Honor summed up. The jury retired, and returned into Court, after an absence of ten minutes, with a verdict of Not Guilty. His Honor then told prisoner that he would commit him for the assault upon the woman. He had before him a verdict of twelve gentlemen who sat at the inquest, and it was to the effect that the deceased child had met its death from violence received when he, (prisoner), was striking the mother, Ten of the jury were for committing prisoner for murder, and he could count himself very fortunate that he had got off so easily.
Prisoner was then discharged on bail to appear to-morrow morning.
