Depositions for William Smith, 10 No 1834, Sydney trial 1
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In the fifth Year of the Reign of
Our Sovereign Lord William the Fourth,
by the Grace of God, of the United
Kingdom of Great Britain and Ireland,
King, Defender of the Faith.
New South Wales
(TO WIT)– }
Be it Remembered, That John Kinchela, Esquire, Doctor of Laws, His Majesty’s Attorney General for the Colony of New South Wales, who prosecutes for His Majesty in this Behalf, being present in the Supreme Court of New South Wales, now here, on the third Day of November in the Year of Our Lord One Thousand Eight Hundred and Thirty four at Sydney, in the Colony aforesaid, informs the said Court, that William Smith late of Patterson’s plain in the Colony aforesaid Labourer –
on the thirteenth Day of July in the Year of Our Lord One Thousand Eight Hundred and Thirty- four with Force and Arms, at Bona Vista in the district of Patterson in the Colony aforesaid, feloniously wickedly and against the order of Nature had a venereal Affair with a certain female Dog called a Bitch then and there being and then and there feloniously did carnally know the said Bitch, and then and there feloniously wickedly against the order of Nature with the said Bitch did commit and perpetrate the abominable Crime of Buggery, to the great displeasure of Almighty God, to the great Scandal and disgrace of the human kind, against the form of the Statute
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in that Case made and provided and against the peace of our said Lord the King his Crown and Dignity.
[Signed] John Kinchela, Attorney General
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[On reverse of the above (1-2) is the following]
26 Buggery
In the Supreme Court
No. 6
The King against William Smith, Bond [Bonded]
Information
Witnesses: John Lambert, William Toomy, Isaac Powell
November 10th 1834.
Plea – Not Guilty
Verdict, Guilty.
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November 18th 1834 Sentence of Death passed on William Smith
[Signed] John (?)
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Justice J Dowling's Notebook 2
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Crown Side
Forbes CJ
Monday 10th November 1834
Coram Dowling J.
The King v. William Smith Beastiality [sic]
26th July 1834 at Bona Vista Patterson, a venereal affair with a female dog called a Bitch – & commit Buggery.
John Lambert I live with Mr Philips of Patterson’s River – watchman. I know prisoner. He is assigned Blacksmith to Mr Phillips. He lives in the forge apart from any body else. In July last I went near his hut. I heard some dogs barking, my master’s, & I went to the forge & saw the prisoner & I asked
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him if he had any strange man in the forge. He said no. At that a dog ran out of his forge. Then I went to another man – I told him to have an eye to the prisoner to see what he was doing. A yellow bitch of the kangaroo breed came (?) – I was interested (?) to this because of something that occurred a year before.
Cross-examined. This was between 7 & 8 in the evening after nightfall. I saw no light in the hut. I had a falling out with the prisoner a 12 month. We had a quarrel about a cake – & struck each other. I have no spite against him on that account. I was taken before (?) JP for cutting his head with a stick. I never heard the men say they would be revenged of him. He got a shirt out of my hut – 2 men – accused (?) with shirt.
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Jury It was not this (?) prisoner. I was had (heard ?) before the JP. The other men got punished for insolence.
William Toomy I am assigned servant to Mr Phillips. I saw the prisoner in the fact of having connexion with this bitch in his hut, where he keeps his forge. It was night two or 3 months ago. It was a large kangaroo bitch. John Lambert was the cause of my seeing it – He went down to [see] what was the matter as the dogs were making a noise. He told me to go down to the forge & I should see for me (to the ? some ?) the going on. My hut from the forge is 5 or 6 yards (?) The prisoner’s hut was slabbed. I went to the prisoner’s hut, I looked through the slabs (?)
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by the fire place & there I saw him have connexion with the bitch. He had hold of the bitch’s tail with one hand, & he put his private parts into hers, & was working away at her – & when he had (finished) he laid on his back. The bitch ran to try to get out. After he lay on his back I watched him a minute or two & I went back to my hut again. The door was fastened with a bullock chain. The bitch did not get out. There was a fire light. There was sufficient to see every thing that passed. I did not called to him – nor interrupt – & I looked on & went to my hut. Isaac Powell was the overseer. When I went down to the hut
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I heard the bitch screech out. Lambert then said (?) go down & you’ll see some thing going on again. Powell then went, & I stopped in my hut. This was Saturday night & on Tuesday following the Overseer took prisoner on the Sunday count – He remained on farm till Saturday night. Mr Phillips was informed the same night – as soon as Powell saw what he did he went & fetched Mr Phillips down.
Cross-examined. The prisoner had never any falling out. Always good friends. I never took his shirt. I had my own shirt hanging before the fire. I recollect his coming to inquire about a shirt.
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I was about 9 months on the farm with him. I have always [been] on good terms with him. It might be 8 ormore. There was a fire light.
Jury: It was good wood fire – plenty logs. I went by myself. Lambert did not go with me to the hut. he did not know I was there. I did not say a word to him.
Isaac Powell I am assigned to Mr Phillips. I am a special constable. I remember, In July – Toomy, Lambert & myself live in the same hut, about 40 yards from the prisoner – I heard of a bitch a dog wimpering [sic]. Toomy & Lambert told me if I went to the forge I should see a sight. I went alone to the forge. When I got there I saw the prisoner having connexion with a bitch in the forge. I saw through a parting in the slabs. There was the light in the
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fire. I saw the prisoner having connexion with the bitch. I was stooping down. The bitch was close to his person – Her behind part with his private. I stood till I thought till he had finished. He was holding her – & she left & tried to get out. He held her by the tail. When I went away he had parted from (her). He had only his shirt on – no trowsers [sic] or breeches. I did not speak to him. Then I saw him try to catch the bitch again, & then I went to tell my master. My master came back with me. It was about nine at night. I went to the blacksmith shop
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asked him what he had he had been doing with bitch & he said nothing. I asked him to open the door, & he did not & then I forced it – It was secured by a bullock chain – My master was with me. As I opened the door the bitch ran out, & I told my master to observe it. She was a large yellow bitch – It belonged to one of our mena shoe maker. I had known it two years. She had had puppies several times – She was quiet dog – not of a badtemper.
Cross-examined. He was whistling in the shop when my master came down. When I went in he had nothingbut his shirt. I (brought ?) him out – to my master. I pushed him about &
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he said he would make me no better a thing of that (?) – & I told him I would let him know on Tuesday the court day – at Patterson’s plains – Next day I took (him) to the lock up on Sunday & on Tuesday he was taken before the bench. It was about 9 – I made no claims (alarm ?) when I saw him. We never had any falling out. I never know who stole his shirt.
Jury: I have been 3 years & 9 months on the farm. I am a constable. I went alone – & saw the act. I saw him finish, & I (saw) that he was lying again & I went for my master.
Cross-examined. I was told of it different times that evening – I saw him in the fact – Lambert spoke
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to me. I did not go for an hour. Toomy did not tell me what he saw, but that if I went to the blacksmiths shop I should see – It was a wood fire, not a great fire but sufficient to see what transpired, The fire was not a foot from where it took place.
James Phillips I am a settler on the Patterson’s River. I remember the overseer coming to make to make a complaint. It was just after dark. I went with him to the blacksmiths shop – I did not go quite up to the place. He demanded him to open the door. He did not, & he broke open the place. When the door was open I saw a dog rush out. He had fastened it inside. In the day time when absent he left it. I can’t say how he was dressed –but I knew it was him
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by his voice. The first witness Lambert (seems ? same ?) was beforehand a fight together I don’t believe of any ill blood between prisoner, Toomy & Powell. I am always resident. (Free & ? etc.) I never heard of any complaints on the part of the prisoner about Toomy or Powell.
Cross-examined. I could just see him. I saw (?) say that a man (with ? like ?) him (?) – when he was very violent when he came down – that he was a disgrace to any farm & he ought not to be let to live – Powell has been in my service 4 years. His conduct and that of Lambert & Toomy has been excellent. They are the best conducted men on my farm. I signed
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an application for Powell to get married to a young woman who came free – a (servant ?) to my daughter. The prisoner was 2 or 3 years in my service & I have nothing to allege against him.
Jury: There was a wood fire. The slabs were all open & you could see anything. I am almost certain he was in his shirt. I ordered the bitch to be killed – & she was killed immediately. I had Powell sworn in constable & overseer – I heard nothing of this kind before that evening.
Defence
I am innocent of this most horrid act – completely – about his shirt. (?) last night.
[Isaac] Powell (?) he was sent away two months after this & before the subpoena came down.
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Dowling J
Summed up.
The Jury find prisoner – Guilty.
Death passed.
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The Sydney Gazette and New South Wales Advertiser, Thu 20 Nov 1834 3
SUPREME CRIMINAL COURT
TUESDAY [18 November 1834]
This morning the three Judges sat for the purpose of passing sentences on the several prisoners, convicted before them during the present sittings of the Court.
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William Smith, convicted of an unnatural offence, received sentence of Death in the usual terms.
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The Australian, Fri 21 Nov 1834 4
LAW INTELLIGENCE
Supreme Court – Criminal Side
SENTENCES
The three Judges took their seats on the Bench on Tuesday [18 November 1834], and the following prisoners convicted during the last Criminal Sessions were brought up for judgment.
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William Smith, convicted of an unnatural offence; the sentence of the Court was, that the prisoner be hanged at the usual place of execution at such time as His Excellency may appoint.
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Enclosure SS to NSW Executive Council Minute No. 28, 1834 5
397
Report of the cases of Capital Convicts tried before James Dowling Esq one of the puisne Judges, at the Criminal Session of the Supreme Court, holden at Sydney in the Month of November 1834.
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The Prisoner (The King v. William Smith (Bond) William Smith was tried before me on the 10th inst for the abominable crime of buggery with a female Dog at Paterson’s River on the 26th July 1834. –
Verdict Guilty. Sentence of Death passed.
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NSW Executive Council Minute, 26 Nov 1834 6
Minute No. 28
Council Chamber
Wednesday 26th November 1834
Present
His Excellency the Governor [Richard Bourke KCB]
The Hon Lieut Col [Kenneth] Snodgrass [The Senior officer of HM Land Forces]
The Hon the Colonial Secretary [Alexander McLeay]
The Hon the Colonial Treasurer [Campbell Drummond Riddell]
1. His Excellency the Governor laid before the Council the Report [see Enclosure above] of Capital cases tried at the late Criminal Session of the Supreme Court before their Honors the Judges who were severally introduced and explained the Circumstances attending each case – The Council having attentively and maturely considered the same advised as follows, viz
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William Smith Convicted of buggery with a female dog – That the sentence of death passed upon him be commuted to hard labour in irons for Life at Norfolk Island.
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The Council then adjourned Sine Die.
[Signed] E Deas Thomson, Clerk of the Council
1 SRNSW: NRS880, [SC T38] Information No. 26, Supreme Court, Papers and depositions, 1834.
2 SRNSW: NRS5869, [2/3288], Judiciary, J Dowling, CJ. Notebooks Proceedings of the Supreme Court of NSW, 1828-44, p. 70-82. Emphasis added.
3 The Sydney Gazette and New South Wales Advertiser, Thu 20 Nov 1834, p. 2.
4 The Australian, Fri 21 Nov 1834, p. 2.
5 SRNSW: NRS4234, [4/1443], Executive Council, Appendices to minutes, 1828-48, pp. 397-8.
6 SRNSW: NRS4232, [4/1518], Executive Council, Minute books, Minute 28, 26 Nov 1834, R2436.