There was another court case involving an alleged assault of a neighbour and possibly even friends of Henry and Lydia.
LAW INTELLIGENCE. CENTRAL CRIMINAL COURT. SATURDAY.
Before His Honor the CHIEF JUSTICE, NEW MAGISTRATE, James George, Esq., of Apsley, was sworn in as a magistrate of the territory of New South Wales.
SHOOTING WITH INTENT.
Martin Gill was indicted for that he, on the 21st day of May, did unlawfully, maliciously, and feloniously, shoot at one James Butler Kinchela, with intent to murder the said Kinchela.
A second count charged him with intent to do some grievous bodily harm. The prisoner pleaded not guilty.
The Attorney-General prosecuted for the Crown ; Mr. Lowe for the prisoner ; Mr, G. R. Nichols, attorney.
The ATTORNEY-GENERAL briefly opened the case, stating the facts as they appear in evidence.
Graham Hunter, sworn : Was Commissioner of Crown Lands ; was on the Parramatta-road on the 22nd May ; saw the prisoner at a public house kepi by a man of the name of Cutts on the road ; saw Mr, Kinchela there too ; saw the prisoner come up on horseback ; as he jumped off his horse witness went into a room and looked from the window ; saw prisoner with a pistol in his hand; saw him fire it ; there was a rush into the room where witness was ; did not see where Kinchela was when the shot was fired ; there were a number of persons in the verandah of the house ; supposed two minutes had elapsed before he could get the door open to go and see what was the matter; when he did get out he saw several gentlemen and the prisoner walking up and down with a pistol in his hand, in a very excited, state; witness said "this man must be taken in charge," and advanced towards the prisoner ; Mr. Jardine and Mr. Davidson advanced too, and the prisoner was secured ; witness was the first that laid hands on him, and took the pistol out of his hands ; another pistol was afterwards taken out of his pocket; one of the pistols was discharged, and one was loaded with ball; it was taken to a gunsmith's next day ; the prisoner was in a very excited state, but did not recollect what he said.
Cross-examined by Mr. LOWE: Could not say whether there was any cap on the pistol when he took it from his hand.
James Davidson: Remembered being at Cutts's, on the Parramatta Road, on the 21st May ; the prisoner came up to the house, and came into the verandah ; he presented a pistol . to Mr. Kinchela, and asked him, " If he should give him time ;" he held a pistol close to Mr. Kinchela's head ; witness seized the pistol, , when prisoner said if he did not loose it he would blow his brains out ; witness let the pistol go, and the prisoner then came in front of Kinchela, and fired at him ; he was about half a yard from him ; the wall of the house was behind Kinchela ; there was no mark on it ; he could not have fired over the verandah ; when he saw he had missed him he said, " My God, how could I have missed him ;" he threw the pistol he had discharged away, and drew a second pistol from his pocket ; he brandished it about a good deal, till Mr. Hunter came out, and he was secured ; the report of the pistol was a very loud one.
Cross-examined by Mr. LOWE : Mr. Kinchela rushed into the house ; the muzzle of the pistol was about half a yard from Kinchela.
Michael Ryan, sworn: Was a constable ; produced some pistols which were given to him by Captain Hunter ; one of the pistols was discharged, the other was loaded ; the charge had been drawn and replaced.
James Butler Kinchela : The pistol that was discharged at me by the prisoner was about a yard from me ; I think if it had been loaded he could not have missed me ; I thought something slight touched me in the forehead, it left no wound or bruise ; he could afterwards see no marks on the wall. This was the case for the Crown.
Mr. LOWE very briefly addressed the Jury, stating that his main difficulty would be in endeavouring to divest their minds of such a sense of the grievous and intolerable wrong which had been inflicted on the prisoner, as would induce them to think he would commit the act with which he was charged. (The learned gentlemen then went over the evidence showing there was not a shadow of proof that the pistol was loaded.)
His HONOR summed up, and the Jury having retired for a few minutes, returned with a verdict of not guilty, The prisoner was discharged. The Court adjourned till Monday at ten o'clock. 1
Henry and Lydia, licensee and resident at the Sportsman's Arm hotel in Parramatta street, were involved in the subsequent court case involving the alleged abduction of their neighbour's young daughter, which was the reason behind the previous case.
SEQUEL TO THE PARRAMATTA ROMANCE.
TRIAL OF MR. JAMES KINCHELA FOR ABDUCTION.
SATURDAY, JUNE 3. (Before His Honor Mr. Justice Manning.)
James Butler Kinchela, late of Parramatta, gentleman, was indicted for that he, on the 21st May last, did unlawfully take one Mary Anne Gill out of the possession, and against the will of Martin Gill, her father, the said Mary Anne Gill being an unmarried girl under the age of sixteen years, to wit, fifteen years. A second count charged the prisoner with causing the said Mary Anne Gill to be taken away.
Mr. Lowe appeared for the prosecution ; attorneys, Messrs. Nichols and Williams.Mr. Kinchela was defended by Mr. Holroyd; attorney, Mr. Little.
Mr. Lowe having briefly stated, the case to the jury, called the following witnesses :-
Mrs. Margaret Gill sworn - Am the wife of Martin Gill; and keep an Hotel in Pitt-street; have a daughter named Mary Anne, who will be 16 years of age on the 21st of this month ; she was born on the 21st June, 1832, and I was married 17 years last September ; it was on the 11th September. 1831 ; I know Mr. James Kinchela ; he has stopped at my house several times ; he left it five or six weeks before my daughter left ; he had been staying about three months with us ; he left at my request; I missed my daughter Mary Anne between 8 and 9 o'clock on the evening of Saturday, May 20 ; had seen her about 8 o'clock that evening at tea ; my husband was at home at the time, and on my telling him, he went out ; he returned about 10 or 11 o'clock without bringing my daughter back ; shortly after this a man named Webb, who keeps a public-house in Parramatta-street, came to my home and saw my husband, who went out with him ; my husband was about half an hour away when he returned in a cab accompanied by my daughter and Mr. and Mrs. Webb ; I sent Mary Anne upstairs to bed, and did not see her again that night ; the next morning she was missing again. Mr. Holroyde submitted that they could not go into any further missing. His learned friend had only charged one abduction, and he apprehended he could not go into a second one.
His HONOR ruled that what transpired before might be necessary to show the real meaning of what look place afterwards. Examination resumed - I missed my daughter about 7 o'clock next morning.
Cross-examined by Mr. HOLROYD - Was at home on Saturday, the day I missed my daughter; did not see Mr. Kinchela about my premises that day, but I saw him in King-street ; Mr. Gill was out that day : he left home about 3 or 4 o'clock, and returned before 9 in the evening ; he was not at tea with us that evening ; my daughter was brought back between 12 and 1 o'clock at night, and I missed her again next morning ; did not see Mr. Kinchela about my premises that night.
By the JUDGE - From the state of my daughter's bed it was evident she had slept in it that night.
Henry Webb sworn - Keep a public-house in Parramatta-street ; remember the evening of Saturday, the 20th May ; saw Miss Mary Anne Gill that evening ; she came to my house between 9 and 10 o'clock; she came in a carriage by herself; I don't know who drove the carriage ; she came inside, and sat down in one of the private parlours ; she then went up stairs to bed with the servant girl ; Mrs. Webb afterwards came in, and I told her that ...
Mr. HOLROYD - "You must not repeat what you said to your wife."
Witness - Mrs. Webb asked me to ...
Mr. HOLROYD - "Never mind what your wife said to you, Mr. Webb."
Witness - Mrs. Webb advised me to ...
Mr. HOLROYD -"Mrs. Webb's advice, though doubtless most judicious, is inadmissible as evidence, Mr. Webb ; state simply what you did."
Witness - I went down to Mr. Gill's, and he came back with me in the cab ; I told Mrs. Webb ...
Mr. HOLROYD - "We can't have what you told your wife. Sir."
Witness - My wife told me ...
Mr. HOLROYD - "No, Sir, nor what your wife told you, either."
Witness, in perplexity - "Then I can't go on."
Mr. LOWE -" State what you or Mrs. Webb did."
Witness - Mrs. Webb went up stairs to Miss Gill, who came down, and I and my wife, went home with them ; I did not see the defendant that night; I saw him at my house on my return from Gill's ; he said his name was Kinchela ; I asked him how he came to send that young woman to my house, and he said he did not think there was any harm in it ; I then told him she had gone home to her father's ; he stood at the counter and had a glass of grog, and that finished it; he then went away ; I think he told me he was going to be married the next day ; it was about 2 o'clock in the morning when this occurred at my house.
By Mr. HOLROYD - Was at home the whole of the time from when Miss Gill came to my house, to when I went for her father; I know Mr. Healy, a gentleman connected with the Turf along with Mr. Downes ; after Miss Gill arrived at the Sportsman's Arms ...
Mr. HOLROYD - "That is the name of your house ?"
Witness - "Yes, Sir."
Mr. HOLROYD - "A very appropriately named place, too, for a little, sporting affair of this kind."
Witness resumed - After Miss Gill arrived, Mr. Healy came to the house ; will not be positive whether he had an interview with Miss Gill ; he went into one of the parlours ; it was just after Miss Gill came, and before Mrs. Webb had retired ; I was present when Mr. Healy came in ; he asked to see Miss Gill ; he did not mention her name, but asked for a young lady who had come there in a carriage, and he then went into one of the parlours ; he remained there two or three minutes ; I received the young lady at the door of the cab ; she had no one with her at that time ; the conversation I had with Kinchela was over a glass of grog.
By a Juror - There is a communication between my parlours.
Lydia Louisa Webb sworn - Am the wife of the last witness ; remember the evening of Saturday the 20th May last ; after my husband went away to Mr. Gill's on that evening, Mr. Kinchela came in and asked for Miss Gill; I told him Miss Gill was then in bed ; he said he wished to see her ; I went to Miss Gill, and Kinchela afterwards went up stairs to see her ; Kinchela was down stairs during the greater part of the time my husband was absent ; do not remember at what time my husband went away, nor when he returned, but it was after he went away that Kinchela came.
By a Juror - I do not remember how long Mr. Kinchela remained up stairs ; it might have been a quarter of an hour.
Martin Gill sworn - Am the husband of Margaret Gill, and keep a public-house in Pitt-street ; have a daughter named Mary Anne ; remember missing her on last Saturday week, the 20th May ; it was about 8 or 9 o'clock in the evening ; I went looking about the house, but could not find her ; after I had shut up the house Mr. Webb came in, and I accompanied him to his house, where I found my daughter ; did not see Kinchela there ; I brought my daughter back ; she was missing again the next morning ; on neither of these occasions she had my consent to go; she went against my consent. Mr. HOLROYD declined cross-examining this witness.
Samuel Guy sworn - Am a constable in the Sydney Police; remember the morning of this day fortnight; remember seeing Mr. Kinchela on that morning ; it was dark at the time, and could not now point him out in the Court.
Mary Anne Gill, the heroine of this "strange eventful history," was then called. The witness betrayed considerable agitation and sobbed bitterly on entering the room.
His HONOR addressing Miss Gill, said she must endeavour to command her feelings, in order to perform the solemn duty required of her. Miss Gill, having been sworn, then deposed as follows:-
My name is Mary Anne; I am the daughter of Martin and Margaret Gill ; remember this day fortnight, Saturday the 20th May ; drank tea with my mother that night; after tea I went out, having previously sent my clothes by a servant named Rebecca ; I went out to meet Mr. Kinchela; I walked out ; I had seen Mr. Kinchela before during that day, but not to speak to him ; saw him passing by the door of my father's house; I think I met him at the corner of York-street ; I had last conversed with him on Friday night at a window in my father's house ; the window looks into the street ; he asked me to go away and get married ; I said yes ; he said I was to meet him at the corner of the street where I went to ; when I met him he told me to go to Mr. Henry Webb's in Parramatta-street ; I went there alone in a cab; Mr. Kinchela said he would be there directly ; when I arrived at Webb's I waited for Mr. Kinchela ; I went to bed, and got up again and dressed myself when he came ; he did not stay very long ; shortly afterwards my father came and took me home; after I got home I was to go again in the morning by Mr. Kinchela's appointment ; on hearing my father had come for me, I arranged to go with him in a cab in the morning ; he said it was Sommerville's cab, and that I was to go to Sommerville's house in Pitt-street; he said he would meet me at Neitch's, on the Parramatta road; I had some clothes from my father's house; when I left to go to Sommerville's it was between 6 and 7 o'clock ; Sommerville got the carriage ready and drove me to Neitch's ; I saw no one but Sommerville when I went to his house.
Mr. Lowe - "What conversation had you with Sommerville ?" Mr. HOLROYD objected to the admission of any conversation that might have passed between the witness and Sommerville. Mr. LOWE contended that, Sommerville having acted under Kinchela's instructions, such evidence was receivable. His HONOR sustained the objection.
Examination continued - Mr. Kinchela told me that he had told Sommerville, and there was no fear of him telling my father ; Mr. Kinchela said I was to tell Sommerville where to drive to ; am not sure whether he said that he (Kinchela) had told him I went to Sommerville's house the next morning, and he drove me to Neitch's, and asked if Mr. Kinchela was there ; he was not there ; Sommerville then drove me to a house further on the road towards Parramatta, and returned to Neitchs'; he brought me back a note in Kinchela's handwriting ; I know his handwriting; have not got that note in my possession ; I tore it up ; it was to the effect that I was to go to Parramatta, that he had told Sommerville where to take me to, and that he (Mr. Kinchela) would be up that evening.
By the JUDGE - I got that note between 9 and 10 o'clock in the morning.
Witness resumed - Sommerville then drove me to Mrs. Bateman's Inn, Parramatta, where I remained until evening; Mr. Ryan, the Chief Constable, and Mr. Fitzsimmons, then came for me, and Sommerville coming outside the window, told me they were come for me, and asked me to jump out ; Sommerville held up the window, and I jumped out, when Mr. Ryan came up and took me to Mr. Fitzsimmons's house ; I am not married.
Cross-examined by Mr. HOLROYD - I think I have told every thing that occurred from the time of leaving my father's house on the Saturday evening till I was taken to Mr. Fitzsimmons's ; I left my father's house between 8 and 9 o'clock on the Saturday evening whilst the family was at tea ; I walked ; I first went to a Mrs. Kelly's house in Castlereagh-street, where I stopped about half an hour ; I then went in a cab to the Adelphi.
His HONOR - "Where is the Adelphi ?" Mr. HOLROYD - " I'll take you to it directly, your Honor." (laughter).
Witness - I took the cab in Castlereagh-street, and from thence went to the Adelphi Hotel in York-street, to see Mr. Kinchela ; did not see him there ; I then went in the cab to the back of the Police Office, in York-street ; when I got there I sent William, the ostler of the Adelphi, to find Mr. Kinchela ; had to wait about 10 minutes before Mr. Kinchela came ; he then came up to the cab, and after remaining a minute or two told the cabman to drive me to Webb's ; I know Mr. Healy ; saw him at Webb's.
Mr. HOLROYD - "When you saw Mr. Healy at the Sportsman's Arms shortly after your arrival there, did not Mr. Healy urge you to return to your father's house ?" Mr. LOWE objected to anything being given as evidence that had passed between the witness and Healy. His HONOR sustained the objection.
Mr. HOLROYD to witness - "Did you on that evening give the same account to Mr. Healy as you are giving us now ?" Mr. Lowe objected to the question. His HONOR did not see why the question should not be put in the broad way proposed by defendant's counsel.
Witness resumed - When I saw Mr. Healy at Webb's, I did give the same account to him as I have given here to day as to my reasons for leaving home ; that I will swear ; when at Webb's I got up, dressed, and saw Mr. Kinchela ; I went direct from the back of the Police Office to Webb's ; dare say it was about 10 o'clock in the evening ; Rebecca did not leave my father's house with me that night ; I left alone ; saw nobody at Sommerville's house but Sommerville ; Sommerville was in bed when I got there, but his man was there ; Mr. Kinchela was not at Bateman's, at Parramatta, when I was taken by Ryan; did not see Mr. Kinchela that day from the time I left my father's house till I was received by Ryan ; did not jump into Mr. Kinchela's arms through the window.
Mr. HOLROYD - "Have you not assigned the ill-usage of your father as a reason for leaving his house ?" Mr. LOWE objected to the question. His HONOR sustained the objection. Mr. HOLROYD begged His Honor to take a note of the question.
Witness - The conversation with Mr. Kinchela on the Friday night at the window of my father's house, took place between 1 and 2 o'clock in the morning.
By a Juror - Mrs. Kelly is not a friend of my father. By Mr. HOLROYD - Mr. Kinchela appointed to meet me at Mrs. Kelly's. This closed the case for the prosecution.
Mr. HOLROYD, for the defence, first proposed to take His Honor's opinion as to whether a sufficient abduction had been proved within the meaning of that particular statute; the learned counsel having cited several authorities in support of his argument.
His HONOR intimated his opinion that there was sufficient evidence to go to the jury.
Mr. HOLROYD would request His Honor to reserve the point.
His HONOR entertained so strong an opinion upon it that he should decline doing so.
Mr. HOLROYD would then call upon his learned friend to make his election as to which abduction he would proceed upon. Mr. Lowe argued contra.
His HONOR would not call upon Mr. Lowe to make his election.
Mr. HOLROYD, in addressing the jury on behalf of Mr. Kinchela, must first ask them to form their verdict, and to come to conclusions upon the evidence, and the evidence only, because this case had occurred so recently, that what they had heard out of doors might tend very materially to injure the position of Mr. Kinchela, and might have some undue sway in influencing their verdict. He thought he should be able to show that this was a case in which the defendant would be entitled to an acquittal, because this was not a case of a child's abduction from a father against the father's will. The information contained two counts ; the first charging an actual taking, and the second a causing to be taken. The case as presented, he must say, rested entirely on the credit to be attached to Miss Gill's testimony, and the jury must be aware that a young lady placed in so painful a position would be likely to strain every nerve to regain, that standing in society which she had forfeited by this act of imprudence. He must complain that Summerville, the cabman, who had been examined before the Parramatta Bench, had been kept back on this occasion, and when the proof, as it did, depended entirely upon the evidence of Miss Gill, it was the duty of his learned friend to have called Sommerville. The case consequently rested almost entirely upon the unsupported testimony of the young lady. It appeared that the whole transaction was neither more nor less than a " little love affair," and why Mr. Gill had such an objection to his daughter marrying, he (Mr. Holroyd) was at a loss to conceive. Supposing that any gentleman of that jury had made an appointment with a young lady in the Lover's Walk or the Domain, or any other "cool sequestered spot," where deep in the sylvan shade, they might breathe impassioned vows of undying affection - supposing also that the young lady happened to be under the age of sixteen years, why, that unfortunate juryman would, as his innocent client had been, be liable to an indictment for abduction. It would seem in this particular case that the lady having fallen desperately in love with Mr. Kinchela, that unfortunate young gentleman had been chained hand and glove, and couldn't help himself. Miss Gill had first of all stated that Kinchela had appointed to meet her at Mrs. Kelly's. If such had been the fact, why had she not remained at Kelly's ?. His client had never taken the girl away, but after she had run all over the town after him, and sent for him, he met her ; and he must say that he did not think Mr. Kinchela so deficient in gallantry as to have failed in his appointment at Mrs. Kelly's, if such assignation had been actually made. The learned counsel having energetically contended that this assignation of the lovers would in all probability have resulted in their marriage the following morning, had it not been for the interference of the father, again entreated the jury to form their verdict from the evidence only, which evidence, he contended, was insufficient to justify other than an acquittal.
His HONOR recapitulated the evidence at considerable length; going minutely through the testimony of Miss Gill, and reconciling the few apparent discrepancies in her statement, and after commenting in severe terms on the unmanly line of defence adopted by Mr. Kinchela, left the case in the hands of the jury, who retired, and after an absence of fifteen minutes returned into Court with a verdict of GUILTY on the second count, viz., "that of causing to be taken." The defendant was then remanded to gaol for sentence, the prosecutor declining to consent to take bail for his appearance. 2