Was it murder?

An 1839 case before the Chief Justice of the Court of New South Wales

From the Sydney Herald of 4 November 1839

FRIDAY -- Before the Chief Justice. John William Trigg was indicted for the wilful murder of Thomas Flynn, by shooting him on board the Sesostris, at sea, on the 12th of August.

The prisoner was chief officer of the ship Sesostris, and the deceased was a seaman belonging to the same vessel. Flynn, from the evidence, appeared to have been a quiet inoffensive man when sober, but when drunk was a most desperate vagabond, and being a very powerful man was the terror of the whole ship. The crew was in a very mutinous, disorderly state, and there was a great deal of drunkenness; indeed, to such a pitch did they carry their audacity, that they stole a whole cask of beer from the quarter-deck where it was lashed, and drank it in the forecastle. About three weeks before the occurrence referred to took place, Flynn was handcuffed by the officers of the ship, when the irons were forcibly taken off by the crew, and thrown overboard, and one of the seamen threatened to chop off the chief officer's hands for endeavouring to interfere. The deceased had on more than one occasion threatened the life both of the captain and mate. On the night in question Flynn went aft and upon being asked what he wanted, said, the doctor; the doctor was called but did not come immediately; and the chief officer put his hand on Flynn's shoulder and directed him to go forward: he did not go, and Trigg again requested him to do so, when Flynn struck him and closed with him; it was a very dark night, raining and blowing fresh, and Trigg and Flynn slipped towards the bulwarks; Flynn then repeated the blow, and Mr. Nichol, a passenger who had just come on deck, walked over towards them with the intention of assisting Mr. Trigg, but just as he put his arm round Flynn Mr. Trigg fired a bullet through his head. The captain and some of the passengers who were in the cabin immediately came out, and Flynn was taken down below and died a few hours afterwards. Mr. Hustler addressed the jury at considerable length for the defence, contending that it was evident that Mr. Trigg did not in the darkness of the night and the confusion of the moment see Mr. Nichol come to his assistance, but that having retreated across the deck until he could get no further he was afraid Flynn would murder him, and was justified in firing at him; in consequence of the state of the crew the officers had been directed by the captain to carry pistols.

A great number of witnesses were called for the defence, who proved that Flynn was one of the most powerful men that ever was seen, and a perfect demon; that on the night in question he had, with the most horrible language, threatened to have Mr. Trigg's life; that he had intended to break into the main hold that night but was prevented by the hatches having been battened down. The account of the affray given by these witnesses varied very much, some stating that there were twenty blows, other that there were only three or four, but three witnesses for the defence swore positively that before the shot was fired, they heard a gurgling kind of noise as if Mr. Trigg was being strangled. All the witnesses concurred in calling the prisoner a humane kind man.

The Attorney-General replied upon the whole case.

The Chief Justice commenced his summing up by paying some compliments to Mr. Hustler for the earnestness and zeal he had displayed in conducting his client's case. By law, he said, if one person is proved to have killed another the burthen of shewing that he did it under such circumstances as not to amount to murder is cast upon the prisoner. If the prisoner is able to rebut the idea of malice by proving that the death wound was inflicted when his blood was heated in consequence of his having been assaulted, the crime is reduced to manslaughter; no words, however provoking they may be, will reduce murder to manslaughter. Be it that the unfortunate deceased was one of the most worthless vagabonds in existence, still the law holds his life as sacred as that of the highest person in the community: his blood must not be shed, He thought that under the circumstances he was justified in withdrawing their consideration from the case of murder, and leaving it to them to say was the prisoner guilty of manslaughter; and then the true point for their consideration was, had the prisoner, at the moment he fired the shot, fair grounds for thinking that his life was in danger? had he no means of escape? could he not call for and procure assistance? Nothing but the utmost necessity could justify shedding of blood; and if the jury did not think that necessity existed, they must find him guilty of manslaughter. The jury retired about a quarter of an hour, and returned a verdict of Guilty of manslaughter, with a strong recommendation to mercy.

Remanded.

Decisions of the Superior Courts of New South Wales, 1788-1899. Published by the Division of Law, Macquarie University