SUPREME COURT.

New Zealander, Volume XXI, Issue 2222, 13 September 1864, Page 5

SUPREME COURT.

(Criminal Sittings.) MONDAY, SEPTEMBER 12. (Before his, Honor Chief Justice Sir G. A.Arney.) The Court opened at 10 a.m. A juror was fined £5 for non-attendance. The following jurymen were then empanelled: —Messrs. W. Bellingham, Arch. Wallace. E. Wilson, Alexander McKenzie, E. Woodbum, W. Cole, J. Y. Stevenson, 0. McDonald, Daniel Coyle, James Peters, L. Turrell, T. Bissey. ALLEGED WILTDL MURDER. James Boyla was charged with having, on the 16th May last, wilfully murdered Thomas Green. The Crown Prosecutor opened the case for the prosecution. Mr. Wynn defended the prisoner. In the course of the opening of the case for the prosecution, his Honor remarked that it was an important question at law, whether an escort could lawfully shoot a prisoner, being one of her Majesty’s subjects, on attempting to escape, even if under orders of a superior officer so to do. Augustus Lawton, sworn, deposed: I am a private in the 2nd Waikato Regiment. I believe prisoner is a sergeant in Captain’s Pitt’s Regiment No. 3. and I think the 6th Company. I was on duty on escort on 16th May, with Sergeant Boyle, in charge of a prisoner, Thomas Green, from the Albert Barracks to Otahuhu. The escort consisted of Sergeant Boyle, Thomas Cochrane, and myself ; we had Thomas Green in charge going to Otahuhu stockade. Green was to be imprisoned for 28 days for giving drink to a military prisoner he had in charge. By Mr. Wynn: Green was not going to be tried, but to undergo a sentence. By Mr. Merriman: We started from the Albert Barracks at about 10 a.m.. Green being under charge of the escort, under the command of Sergeant Boyle. We went by the Kyber Pass, through Newmarket. We came to the Junction Hotel, at the junction of the the roads leading to Onehunga and Otahuhu. When there, Sergeant Hoyle ordered us to go into the Junction Hotel; we all went in together. Sergeant Boyle and a friend, he had picked up -on the road between the Albert Barracks, and the Junction, were there; 1 believe Boyle called for a drink. They all drank some of it except myself. We went on the road for Otahuhu till we came to the Harp of Erin, when the prisoner Boyle told us to halt again, and go into the Harp of Erin. We all went in again, prisoner’s friend still accompanying him. They all had drink again, with the exception of myself. Prisoner told the deceased, Green, “ You had better get your ..inner now.” Green had some dinner and paid for it. Then there was more drink called for, which was drunk by prisoner, his friend, Cochrane, and the deceased. Prisoner then gave ns orders to proceed to Otahuhu in charge of Green. We proceeded in charge of deceased towards Otahuhu; prisoner came out with his friend from the Harp of Erin, and proceeded a short way to the junction of the Panmure road. Prisoner came out after us, following still in company with us, to the distance of about a hundred yards. We all welit towards Otahuhu except the prisoner and his friend, who stopped behind. I looked back after we had gone some distance, ,and saw the prisoner still stopping at the junction of the roads, where we had left him, taking leave of his friend, who was going to Panmure. By the Court: Until we Poked back we did not know that we were going on without prisoner. He had not halted the escort, at the junction of the roads. By Mr. Merriman: I was 166 paces from the counter of the Harp of Erin before I looked back. I knew Boyle was under the influence of liquor, therefore I looked back to s-e if he was coming after us. When I looked back I saw Boyle talking to his friend at the junction of the roads. We halted till prisoner came un within a few yards of us. He said then, in a kind of inarticulate, drunken voice, “ Come back.” I made him no answer. Cochrane and the deceased said they were on the right road to Otahuhu. Deceased asked, “ If he went by himself, whether he would be admitted into the Stockade.” We all started again on the road to Otahuhu. By the Court: Deceased asked that question I have stated, of the prisoner. The Sergeant made no answer. They were qnite close to one another. We were then all standing still. By Mr. Merriman : We were then facing towards Otahuhu. By the Court: Prisoner came up close behind us and formed one of the party; we had deceased between us. Sergeant Boyle had his rifle just under the hip; cocked but not capped, just in the same position as if going to charge with the bayonet. By Mr. Merriman: Either prisoner or deceased said, “*Boyle would shoot us.” I said there is no danger of that, because he is not capped. His rifle was loaded at the time. We then went on our way to Otahuhu for about a mile and a half, when prisoner halted ns and said “ Open out.” I moved out a pace sideways to the right from the deceased, who was on my left side and in the middle between me and Cochrane. 1 then looked over my left shoulder. Cochrane moved a little to the side, but I did not particularly remark what he did. The deceased stood in the middle of the road, a little inclining to sideways, with his face a little towards me, with his hands down in front in the cuffs of his great-coat, almost as if standing at ease. When I looked over my shoulder, I saw the prisoner about nine feet to the rear; he had a firelock with him at that time. I cannot swear to the firelock produced by John Scott, but it was like it, being one of the same description. He had it full-cocked and capped to present it, directed towards deceased. If he had fired it at that time he must have killed the deceased instantaneously. He fired and hit the deceased in both knees. He pulled the trigger, but I was so shocked when 1 saw him do this, that I did not observe particularly whether he lowered the gun. But the gun went off, and he was so near to me that I could almost have seen the ball go into Green’s leg. Green fell in the middle of the road on his back, and said “Sergeant Boyle you’ve shot me in both legs; had you a spite to me ? Was I doing you anything?” Sergeant Boyle made answer, “ You ought not to have been going over that wall.” There was a wall there at the time, but deceased Green was so drunk that he could not get away, and was not attempting to make his escape; he was standing steady in the middle of the road, sideways, but facing Sergeant Boyle. William Scott, a mounted orderly, rode up, and the prisoner . gave up his arms and said “ I am the murderer; it was I did it,” or such words as that. Deceased lay on his back in the road; then Mr. Scarrett, butcher, came with a cart, and I assisted to get Green into the cart, and got him to the Harp of Erin. I laid him on a mattrass there, got some bandages and bandaged up both legs, in which I found wounds. Cochrane meanwhile went to Penrose farm, for an escort, and brought up the ambulance to the Harp of Erin. I next saw deceased in the hospital, under the charge of Dr. Welby. I took the prisoner in charge and marched him that night to the Otahuhu camp. He was tried by military inquiry, and then handed over to the civil powers. Immediately after deceased fell, I found that the ball had passed through both legs. The wound was through the right leg along-side of the knee, quite through. There was also a wound in the left leg. I saw the deceased afterwards in the hospital. By Mr. Wynn—B fore starting from the Albert Barracks, we paraded at between 9 and 10, a.m We were all armed with muskets. Prisoner was stationed at the Albert Barracks. He would have come back in command of the same escort, after taking the deceased to Otahuhu. I did not see him load his piece, but it was loaded. I was coming through the Barrack square, when I first saw Taylor on that morning, who was sick. I took his place. I joined the escort at the request of Boyle. I never left his company till the occurrence took place, not even for a moment. He had the rifle with him when I first saw him. I had to take Taylor’s rifle and ammunition from him. It was a very wet day. I perceived on starting that Boyle’s rifle had the muzzle stopper in it. When Boyle fired, Cochrane said “ you fired your muzzle stopper.” In the public house that day, some had beer and some had rum. Prisoner had a glass of ale, or spirits or something, at the J unction, and some kind of spirits at the Harp of Erin. I first observed that the prisoner was a little flighty on coming ont of the Barracks. He had a glass in him then. I first perceived that deceased was so drunk when they came out of the Harp of Erin. I observed him and Cochrane jogging and staggering against one another on coming down the descent on the road from the Harp of Erin. Cochrane was also the worse for liquor. I would not know this friend of the prisoner’s'. I have never seen him since. I did no: observe him to be drunk. At the junction of the roads between Panmure and Otahuhu, we were standing about 5 minutes. When I turned round and saw prisoner standing at the junction of the roads, he was about 100 paces off. Boyle was then about 66 paces from the Harp of Erin, Green was so drunk that ho would have fallen among the scoria ot the road, if he had attempted to escape. We had not to lead deceased or support him, he could walk without falling. The first time I saw the gun presented, I was very confused ; but I will swear the gun was at the shoulder the first time I saw him. The elevation of the gun was so high that Boyle must have shot Green if he had then fired at him. 1 did not see him lower the elevation. He was only 9 feet from Green. If he had fired the gun at the position to charge bayonets, it would not have shot Green in the way it did. It would hav e kicked the daylight out of him (Boyle.) The gun wa not Boyle’s, it belonged to private Pippin. The rifl had been loaded for three or|foor months. Pippin wa a

always bragging it would never miss fire. Pippin is not here, he has gone away up to his company. Ido not know that it was on that morning Boyle got the rifle from Pippin.

By the Court : When-1 relieved Taylor and was talking his accoutrements, Boyle said “Do not take that, (when I was taking the front pouch.) you may leave it behind.” it is customary to go loaded when on escort. Solicit it behind, and all the ball-cart ridges had been already taken out of my back pouch. I bad no ball-cartridge myself, but left with iny empty rifle and bavonet. By Mr. Merriman : The first time the prisoner presented his rifle at the party going to Otahuhu, it was not capped. The second time it was capped. I did not then remark if his muzzle stopper was in his rifle or not. But it had been capped from the time that he last saw ns til! then. Thomas Newbiggin Cochrane sworn*, examined by Mr. Merriman, said : I am a private in the 2nd Waikato Militia. On the 16th May I was on escort duty at the Albert Barracks, and received the deceased in charge, in company with prisoner sergeant Boyle and private Taylor. We went to captain Brackeabury’a office in Shortlaud-street, and were there ordered to take deceased to . Otahuhu. We went first to the Albert Barracks, where private Taylor left us, and Lawson' took his place. We went to Newmarket, and from thence to the Junction Hotel, where we halted. The prisoner, who was sergeant of the escort, ordered ns to bait and go into the Junction. There was a civilian present. We all had something to drink except Lawton. We then left the Junction, and started for Otahuhu. On arrival at the Harp of Erin public-house we were again halted for something to drink. Lawson again refused to drink anything. Prisoner told deceased that if he wanted anything to eat, he had better get it then. He bad some bread and cheese. Prisoner told deceased he would have to pay for it,-and he did so. We then left the Harp of Erin, the--sergeant remaining conversing with his friend at the junction of the two roads for some time. He' called out “ Halt,” and we waited for him. On coining up to us he wanted us to go back. I refused; saying, “ That was not the way to Otahuhu.” Deceased also refused to return, saying, “He would go to Otahuhu by himself.” We then went on, but did not notice whether the prisoner followed. We had proceeded about a quarter of a mile when prisoner again called out, “ halt.” We did so, and when he got within a few paces of us, we marched on again. We had proceeded a short distance, and hart perhaps reached Scarrett’s gate when the prisoner called out, “ Stand clear.” I stepped a little to my left, and on looking over my right shoulder, I perceived the sergeant at the “ present.” I had not seen him point his rifle at the escort party prior to this. Hiis rifle was pointed towards the escort when I looked over my- shoulder, and went off the same instant, wounding deceased Green in both legs. Deceased fell on his back on the road, and said, “ Sergeant, what made you shoot me? You hare shot me in both legs.” He seemed in great pain, and called for the doctor. I was directed to go to Penrose Farm for a doctor by the prisoner. I did so, and an ambulance and escort was got ready to return with me, and a doctor sent for from Otahuhu. The ambulance wa.gon upset on the road, and we then got a cart. On arrival at the spot where I Lad left them they were gone. We went on to the Harp of Erin, where we found them. We had deceased put into the cart to remove him, but the doctor (Dr. Welby) came up at this moment. He had him removed to the hospital at Otahuhu. The lifle produced is such a rifle as Sergt. Boyle was armed with on the day in question. Cross-examiaeAby- Mr. Wynn t I was under the influence of drink. I had three glasses to drink that day, I will not swear I had no more. The first house we went into was the Junction. I will not positively swear I had nothing to drink before leaving Auckland. I will not swear f was not at the Masonic Hotel that morning. I first went to the Britomart Barracks to get the prisoner. I don’t remember turning into any public house on the way. 1 knew I had taken drink that day, but I did not know it had any improper effect on me. I don’t remember staggering along the road. It was a very wet day, and I had no great coat on. The prisoner took drink that day. I observed that he had been drinking before leaving the Albert Barracks. The rifle had a muzzle-stopper it in that morning. It was not usual to discharge rifles with the stopper in. I believe the rifle would burst if so discharged. I remember saying “You’ve fired yonr muzzle-stopper,” addressing ihe prisoner. I had not seen him present Lis rifle before this. I did not say “ He’ll shoot us.” I did not observe if there was a cap-snapper on the rifle. Re-examined by Mr. Merriman : l observed the rifle stopper on prison r’s nippleWilliam Scott sworn, examined by Mr. Merriman, said: I am a private in the 40th regiment, and on the ffitfi May was attached to the Transport Corps. I left Penrose on horseback to go to Auckland, with a despatch. When I got about a mile and a half from Penroue, I heard the report of a rifle, and then saw the sitiioks in the direction of the Harp of Erin. I galloped my horse to the spot and saw a man lying on the ground wounded. I did not know the man at the time. I also saw two men aud the prisoner Boyle standing by his side. The men were the two last witnesses. I saw blood on the wounded man’s trousers. He begged of me to go for a doctor, saying the sergeant had shot him through both legs. Prisoner was the only sergeant there, I left then, in the direction of Mr, Scarrett’s to get assistance and take the sergeant into custody. I found four men there, and we all went back to the spot. The sergeant handed me his firelock, and told me he was “ the man who did it.” The firelock was similar in description to the one produced in Court. I handed the firelock over, and cannot swear to it. It had been recently discharged, and had a broken cap on the nipple. Cross-examined by Mr. Wynn : Prisoner said nothing to me of the loading of the piece. I have been 10 years in the service. If the muzzle-stopper was a good one aud air-tight, the rifle would burst. I have burst a rifle in the same way myself. If a muzzlestopper was well worn it would not burst. Re-examined by Mr. Merriman ; I have never seen a rifle discharged having the muzzle stopped up with clay from having fallen on to the ground. John Scott, sworn, examined by Mr. Merriman, said : I am Sergeant in the Auckland Armed Police, and produce a rifle which I received from Constable Negus, of the Armed Police, Mr. Men iman : I cannot trace the rifle, your Honor, The number was not taken.

Cross-txamined by Mr. Wynn : I have known the prisoner since his childhood. I have not known him to hurt a worm until this occasion. I know his father; his mother is dead. His father is a pensioner, living at Howick.

The Court then adjourned for half-an-hour. On the Court re-assembling, William Montague Hall Welby, sworn, examined by Mr. Merriman, said : I am a member of the Royal College of Surgeons, in England, and assistant-surgeon in the Waikato militia. I was in charge of the Mi litary Hospital at Otahuhu on the 16th of May last. From information I received I proceeded in the direction of Auckland, ©n arrival at the Harp of Brin Hotel I found the deceased, private Thomas Green, lying on his back, wounded in both legs above the knees. His legs were at that time bandaged, and as I found no unusual bleeding I had him at once removed to the Militia Hospital at Otahuhu. I accompanied him part of the way, and then rode on to prepare for his reception. I was present when he arrived at the hospital in the cart. He was then in the same state as when he left the Harp of Erin. He did not appear to have received any injury on the way. I made a full examination of deceased at the hospital, placing him under chloroform, with the aid of another medical gentleman. Deceased was in my medical charge. On examination I found on the outside of the right thigh, about two inches above the knee, a wound the size o. 1 a shilling, with bruised edges. On the inside of the same thigh, about half an inch lower down, I found a similar wound. These wounds communicated. The bone was broken through and severely splintered. The wound on the outside of the thigh was jagged at the orifice. On the inside the left thigh, about an inch above the knee joint, there was a similar wound, lower down than the point of exit of the first wound- This wound also communicated with the fracture of the left thigh bone. There was no exit. From this wound I extracted the portion of lead I now produce. I found no other lodgment of lead at this time. I treated him in the ordinary way. I have no doubt the wounds were produced by a bullet from a firearm. The rifle produced would cause such wounds. He remained under my charge until the evening of the 4th of June, when he expired at six o’clock. I made a post mortem examination of the body on the following day. I found the right thigh bone fractured, and a great many splinters lying in the substance of the thigh. I found an opening, apparently from a splinter of a bone, or it might have been caused by a piece of ragged bullet. There were several small abscesses round the bone, caused by recent injury. I found the portion of lead produced embedded in the bone. This is a smaller piece than the first. On the left thigh the extremity of the bone was completely separated from the shaft of the bone. The extremity is the expanded end of the bone, close to the joint. I found several splinters of bone like the one produced, which is the outside of the shaft of the thigh bone. I found several wounds, and the third portion of lead produced in the separated extremity of the left thigh, I found nothing else worth mentioning. A rifle bullet discharged within a short distance of the deceased would have been likely to have been broken up into

i the parts produced, from the great force and nearness or the amount of resistance it would encounter. From the orifice of entry I should say the gun was discharged within a few feet of the deceased. The state of the bones would also lead me to this conclusion. The deceased died whilst under my treatment. I have no doubt as to the cause of his death, which was attributable partly from exhaustion from suppuration from such extensive wounds, and from the shock to the nervous system. He never rallied at all. He died from the wounds described. Wm. Scott recalled by his Honor, at the request of Mr. Wynn: It is customary for the authorities to keep an entry of all rifles serve 1 out to the men. The number of the belts and rifles in the regular service are the s ime. The number is branded on each, so that it is known which firelock each soldier receives. By Mr. Merriman, through the Court: I cannot say whether the same practice is observed in the Waikato Regim n nts. Mr. Merriman wished to put in evidence the depositions of the deceased, and called Mr. Lodge to prove the same. Wm Francis Lodge, sworn, examined by Mr. Merriman, said: I am chief clerk at the Resident Magistrate’s Court in Auckland. [Mr. Lodge was called to prove taking down the dying declaration of the deceased, but found the papers put into bis hands were the depositions taken before the Coroner. After some delay the declaration was produced, having been brought from the Supreme Court-house.] At the request of the Crown Prosecutor, a slight interuval of time was allowed to permit the production of ihe dying declaration of deceased. His Honor remarked to Mr. Wynn, that the trial of the present prisoner had been put off, from the last day of the last Sessions ; as it was then uncertain whether Green would die or not. Green had died since; otherwise the present charge ot wilful murder could not have been brought against the prisoner. The declaration in question had been made previously to tha depositions being taken when the prisoner was commited for trial by the Resident Magistrate. William Francis Lodge recalled: The dying declaration of Green was on the 21st May, and returned to the Supreme Court, with the deposions then taken. There were were two different charges brought against Boyle. While Green was still alive, a charge of intent to murder was brought against Boyle. After Green’s death, a Coroner’s Inquest was held on him at Onehunga, on the 7th June ; and further depositions were taken at the Resident Magistrate’s Court, and a second charge (the present case) brought against Boyle for wilful murder. Through some accidental confusion, the wrong depositions had been brought into Court, instead of those to which the dying declaration in question was affixed. His Honor explained to the jury that this delay was owing to the confusion caused by the removal of the sittings of the Supreme Court to the present building from the old place of session. In the heap of rubbish that was in that building—his Honor having to come up to superintend the arrangements necessary to be made—some papers had been overlooked and left down there. In consequence of this, the result was, that in order to transact the business of the present case, it was necessary to send down for the depositions to which the declaration in question was attached. William Francis Lodge, re-called ; I am clerk to the Resident Magistrate’s Court, Auckland. On the 21st May I accompanied, as Justioe o: the Peace, Mr. Commissioner Naughton to the Militia Hospital at Otahnhu. I there saw the deceased, Thomas Green. He was aware of the state he was in at the time. He said, “ My present belief is that I shall not recover.” He made no different statement afterwards, that I am a are of, respecting his state of health. Mr. Naughton was present at the time, and in answer to Mr. Naughton he made that statement.

His Honor : The objection is, Mr. Lodge, that the document produced by you cannot be read till the Court is satisfied that it is given under the sanction which the law attributes to a declaration male in the solemn and fixed impression that he would not recover. Examination resumed : After making the statement in question, Green said his c mviction was that he would not recover. When Mr. Naughton and I entered the room, Green was in bed, and seemed in pain when he attempted to move. As well as I can recollect, Mr. Naughton stated for what wo came, and asked him whether he felt himself able to give an account of what had taken place. He said he was. Mr. Naughton then asked him to state what had occurred on the ISth May. The prisoner was present during the whole time. He came into the room with us, and was standmg by the bed. Green gave his narrative, which I took down in writing. At the end of the narrative he was asked if he thought he should recover. He said, “ No.” I took down that also in the written statement. At the end the prisoner crossexamined Green ; asked him if he had ever seen Boyle load his (Boyle’s) piece. I took that down also. Then Commissioner Naughton asked him a question, still in the prisoner's presence. I read it all over to Green, after writing it down. Then Green signed it in the presence of Commissioner Naghton, myself, and the prisoner.

By the Crown Prosecutor: I wrote all the statement down at the time.

The Crown Prosecutor applied to have the depositions received as testimony, on the grounds that when the declaration was made Green was perfectly conscious that he was in a dying state. His Honor enquired wh.ther there was any medical evidence in confirmation of the dying state of deceased, or any farther corroborative evidence ?

The Crown Prosecutor had no medical evidence to that effect, and then called James Naughton, who deposed : I am Superintendent of Police and Justice of the Peace for Auckland. On 21st May I went with the last witness to the hospital at Otuhuhu. I asked the doctor whether the patient (Green) was in a dying condition, he replied in the affirmative. I received no especial instructions in the case. I asked Green in the presence of the prisoner if he (Green) had any state ment to make ; I also told him for what purpose it was required. After his making the statement I asked him if he thought he would recover? he said, “My present belief is that I shall not recover.” The prisoner cro-s-examined him ; the statement was read, Green said it was correct, and signed it. As far as I can judge, Green understood what was said to him and what he said. The man gave his statement very coolly indeed.

By Mr. Wynn : Dr. Welby passed in r and out occasionally at the time. Ido not recollect any direct communication between the Doctor and Green,, either before or during the transaction. Dr. Welby, recalled : I recollect the circumstances but not the day of Mr. Naughton and Mr. Lodge coming out and taking a statement in writing from Green. I was in and out of the room while that statement was being taken. Deceased was at that time in a state of danger from the gunshot wounds I have described in my former evidence, and subsequently died from those wounds.

By Mr. Wynn : I never informed Green that he would not recover, as I wished to amputate his legs, and did not wish to depress him. The Crown Prosecutor tendered the dying declaration of Green as evidence. This deposition was taken before Green’s death and the Coroner’s inquest. His Honor : It was never taken as a deposition before the Magistrate, but as a dying declaration of the deceased. As which, do you propose to put it in ? Crown Prosecutor: As a dying declaration, your Honor, I wish to put in as evidence. Mr. Wynn objected to the admission of this declaration unless more positive proof were adduced of Green's impression that death was impending. The evidenc here did not reach that point. Because deceased thought he would not recover, that was not sufficient ground, as a person in a consumption might also think the same. He might have a hope of recovery , though he so expressed himself. But the evidence did not reach the point of proving impending death. Again, he objected against the proceeding of Messrs. Lodge and Naughton in going to the deceased and inviting a statement from him. Upon the broad grounds of public policy, it would not be right to give a sanction to their going for tha* express purpose. If such evidence were admissible, it would be possible to secure conviction without bringing any living witnesses at all. He therefore submitted to his Honor that the evidence could could not be received. His Honor; The declaration has been adduced in two different ways; first, as a dying declaration, under a solemn conviction that deceased was dying, having weight equal to that made by an oath; secondly, by Mr. Lodge, as a docuin-mt wherebv to refresh his memory. I cannot receive it under the first class of evidence; the statement is in detail, and does not contain any strong expressions of his conviction of his approaching end. Then each sentence, one by one, ought to have been characterised by the same impression. This sort of evidence is an exception to the great principle of not admitting hearsay evidence; therefore it is necessary to be stringent in the examination of ifs admissibility. The Statutes 2 and 3 Philip and Mary, and 11 and 12 Victoria, relate to this species of evidence; the Supreme Court of New Zealand does not contain a copy of the former Acts, therefore 1 cannot refer to them. I feel I cannot receive this declaration in Common Law, because it would be a violation of the great principle of not receiving hearsay evidence, especially as there is not sufficient proof that it was made under such circumstances as would constitute it a dying declaration. It is my duty, therefore, to reject this evidence. Mr. Wynn then addressad the jury for the defence, making a very able speech, contending that the prisoner

was ignorant of thejfact that the gun was loaded when he presented it at the deceased. Mr. Wyan called for the defence, Hienzi Turner, who deposed: lam an Ensign in the same Waikato Regiment with prisoner. I have known him for about eight years, and was quartered with him in the M ilitia for thre>* months, I have always considered him as a quiet, well-conducted young man, the last man I should hare expected to be guilty of such a crime as this. Patrick Molloy deposed: I am a Sergeant in the Armed Police. I have known the prisoner for seven years. In my opinion of him, he is one of the most inoffensive young men in the city. William Evers deposed; lam Sergeant of Police. I have known the prisoner for the last sixteen years; he was always a Steady, quiet, and well-behaved young man. His Honor in summing" up said: Gentlemen of the Jury,—James Boyle stands accused of the murder of ; Thomas Green, under the peculiar circumstances which have been brought before you. Preparatory to reading the evidence, therefore, I shall merely advert generally to the doctrines of the law as to malice aforethought, by which the question of murder or no murder is generally decided. It is laid down to you as a general principle, that if a man uses his faculties in such a manner as to know what he is abont, and as to be capable of going about the world and know the difference between right and wrong; if such sinan u-es a fire-arm against a person, knowing it to be loaded, and shoots him, (unless special evidence can be brought to show that it was aimed at his or legs,) aiming at his body, in is sufficient indication of the intention to take' life. It is not then necessary to prove any previous quarrel or malice aforethought subsisting in the man’s mind, or deeply seated ill will against the person killed. In this case: the evidence is not quite so stringent against the prisoner. Firstly, because, although drunkenness in general is no extenuating circumstance, yet in this particular case, if drunkenness were such a circumstance as would render the prisoner more easily excitable, and under a false impression of duty, more likely to discharge his piece, it would demand consideration on the part of the jury. Secondly, he was in the execution of his duty furnished with a loaded fire arm, but no specific directions given him for its use. His Honor then proceeded to read the depositions of the various witnesses, and to comment thereon, remarking that the first witness was perfectly sober and remarkably clear in his evidence. And the only motive that cmild be inferred from hj s evidence for the commission of this act, was perhaps some fancied indignity arising from the escort proceeding onwards, leaving prisoner behind. The second witness, though rather under the influence of liquor, corroborated the first in every important particular. His Honor censured severely the prevalence of this vice, remarking, there is something in this frightful demon which, without destroying the reason, deprives men of all self-control over their moral actions; and we very often find among such men, even when possessed of complete consciousness, a total paralysis of moral will and self-command. His Honor cited the case of a sentinel on board ship, who in obedience to the orders of his officers, fired at a boat which would not reply to his challenge, and thereby killed a man, the jury brought in a verdict of wilful murder which was acquiesced in by the Judges, butihe sentence mitigated in consideration of the peculiar circumstances. After some concluding observations, His Honor called on the jury to consider their verdict. After retiring for a short time, the jury returned a verdict of Guilty of Manslaughter. His Honor, in passing sentence, said : Prisoner, I regret to say it is my imperative duty to- pass upon you what may seem a somewhat severe senteaca. I cannot regard the crime as an act of ordinary negligence ; I cannot but regard it as a crime that shows excessive recklessness in the use of a weapon, particularly an instrument of death. I feel that the jury have taken an extremely merciful view of your case. The law on this matter is, and must be, sternly held to be this—if a man, whether upon a previous quarrel or not, presents a loaded firearm and discharges ft at another, and kill him, it is* murder. And I say imperatively, it is necessary to punish severely such cases, considering that your offence can only be equally punished with burglary. I should be very sorry that the public should think that this Court shrinks from maintaining that principle in all its integrity. Amongst the public generally the practice has grown lately more frequent of using these weapons in a most reckless manner. Then when men stand charged with actually taking the life of a fellow-creature, 'hey have the notion that they can excuse themselves before God and man by saying they were drunk. You have received an excellent character, which' completely satisfies me of your previous good conduct: this wilt be taken into consideration ; but, at the same time, it is my duty to pass such a sentence as will show the public that even if a prisoner escape with- a verdict of manslaughter, he cannot escape severe punishment. The sentence of the Court upon you is, that for thia offence you be kept for a term of four years in penal servitude. The Court then adjourned at about half-past six till ten o’clock to-morrow (this) morning.