Patrick
Dwyer Charged with Tumut River Murder 15
September 1843 The Sydney Morning Herald |
Berrima, Saturday, September 9, Before
Sir James Dowling, Chief Justice. Patrick Dwyer was then placed at the
bar, charged with the wilful murder of Michael Fogerty,
at the Tumut River, on the 28th May last. The offence was also laid as a manslaughter. Wm. Haydon, wheelwright, Tumut River, deposed:-
That he was at Dodds's
house, Tumut River, one Sunday morning in May last, on the occasion
of Johnny Ryan's wedding. Johnny and his intended, John Dodds and
his wife, Mrs. Dwyer and witness's wife, were also of the party. In one room, where witness was also,
were a gang of government men employed in the neighbourhood, who were
drunk and quarrelling among them- selves about salting beef. The gardener belonging to the place
came into the room, and was shoved out again by the government men. The prisoner then entered the room with
a broad axe in one hand, and the lower batten of a bedstead, when
witness said, "Paddy, what are you about?" but he said, "Stand
clear," and rushed in, holding the axe over his head, when a
scuffle ensued, but the prisoner was prevented from striking with the
axe by the beams of the house catching the axe. The witness then saw a man at the door
with a knife in his hand, and he begged him to go back, which he did. The row then became general, and
the axe passed from hand to hand, during which witness got possession of the
axe, said he would not use it against any one, and threw it away. Fogerty (the
deceased) was one of the government men in the room at the time, and was
stripped and very riotous. Witness shoved him outside and
shut the door, the prisoner and witness going out at the same time. Presently he heard a blow, and
turning round saw the prisoner twice strike the deceased on the head with
the batten, which was two or three feet long, and about two and a half
inches thick. The prisoner then left the deceased of
his own accord. The witness added that he (witness) was a native of the
colony. Cross-examined by Mr Nichols, who defended
the prisoner:- The witness stated that the
prisoner was master of the house at the time, it having been committed
to his charge by Dodds, and that in that
capacity he entered the room, to put an end to the row saying,
"Clear the house!” Prisoner was bleeding at the
mouth, apparently from a knife wound, it was
inside the house that prisoner got the wound, where Fogerty
was at the time. He had known the prisoner three
years, and thought him a quiet, peaceable, kind-hearted man. Michael Madden, watchman to Mr Shelly at
the Tumut River, saw the row in Dodds's heard the
prisoner order the men out, and saw him make a blow at one with the
batten which the beams prevented from taking effect. One of the men who had been salting
the meat stood at the door with a knife in his hand, and threatened
the prisoner "what he wouldn't do to him," if he attempted to
put him out. Witness went between them to pacify
them, and they all went outside, where was Big Peter with two stones in his
hands, which he threw at the prisoner one after the other, hitting
him in the side. The prisoner immediately ran after
him, but a rise in the ground prevented the witness from seeing what
followed. When the prisoner returned, in
ten minutes, witness heard that a man had been killed, and he went to
the place and saw Fogerty dead. Cross examined by Mr Nichols:- He saw Big Peter the Scotsman
strip to fight the prisoner; Fogerty was a small
man, but Peter was a big man like the prisoner; the prisoner had plenty of
opportunities of getting away after Fogarty's death, having a horse,
saddle, and bridle; the men had butchers knives cutting up
the meat; saw two stones weighing three or
four pounds each, thrown at the prisoner; Big Peter and Fogerty were partners in fighting prisoner George Ibbotson, gardener to Mr
Darling, was also present when the row took place, and went into
the room where the men were cutting up the meat, but Michael Carroll caught him
by the breast, and told him he had no business there, and shoved him
out, witness then sat in the kitchen where the prisoner was, and Carroll
came there with the knife, and threatened what he would do. The prisoner then got up, went
outside, and came in again with a piece of timber and an axe, which he
held as if to keep the men from him. The men struck him first, when he
struck at them, but the beams caught the blow and broke the stick. The prisoners then put them out by
main strength. Outside, the witness saw Big Peter
throw a stone of five or six lbs. at the prisoner, who followed
him, knocked him down, and ran on towards the stockyard, witness
remaining at the house, where, in ten or fifteen minutes, he heard that Fogerty had been killed. He then went and saw him dead. Cross examined by Mr. Nichols: The prisoner told the men that he had
charge of the place before the man was killed. Witness heard of beef being taken
away from the house by the government men. Fogerty bounced
a good deal about fighting. Witness saw Big Peter throw
stones at the prisoner, he, (Peter), Fogarty, and the other men, were
all on one side, and prisoner on the other. Prisoner was wounded in the
kitchen. Witness had known the prisoner three
or four years, and he was a quiet peaceable man. David McGrail,
formerly Corporal of the 80th Regt, deposed that he had charge of the road
party, who were in Dodds's house on the Sunday
morning in question, when and where witness was drinking with others between
two and three in the morning. Later in the morning when the row
took place, witness saw Big Peter with a knife; took it from him, Peter
at the same time rather knocking witness down, in taking the knife he cut
Peter s thumb and his own trowsers, witness
then gave the knife to a woman outside the house where he saw the
prisoner and Fogerty on the ground. He afterwards saw Fogerty
dead. Cross examined by the learned Counsel: It might have been the rum that rather
knocked him down. He was not sober; if not sober, of course he was drunk.
(Laughter.) John Ryan, tailor, living at the Tumut, (the
bridegroom) saw Big Peter on the road while the prisoner was in the verandah, when Peter abused him, and threw two very
large stones, which the prisoner escaped by stooping, or they might have
killed him. The prisoner then knocked Peter
down, and turned to fight with Fogerty, who also
had thrown a stone at him, but a smaller one. Fogerty ran
towards the stock-yard, where the prisoner followed him, and as he fell over
some dung, struck him with the batten, first on the back, and then two
or three times on the head, which killed him, Fogerty,
at the time, having nothing on but his trowsers.
Prisoner afterwards said, he considered himself justified in what he had done, in
protecting the place, as he had been placed there for that purpose
by the people of the house. He had known the prisoner two or
three years, andconsidered him a quiet, decent man. Cross-examined by Mr Nichols: Fogerty was
stripped, and called on the prisoner to fight him, the same as Big Peter
did. It was on stones being thrown
into the house that the prisoner came out, when he saw Fogerty with a stone in his hand, which was big enough
to knock a man's brains out if it hit him in the right place. It was a very stony place, plenty
of large stones about, those thrown by Peter being six or seven pounds weight.
Witness thought the prisoner's life in
danger at the time, he ordered the men away frequently before he
attacked Fogerty. Dennis McCarthy confirmed the main features
of the above testimony, and added, that after
the prisoner had killed Fogerty, he struck with
the same batten Michael Carroll, who was confined to his bed a long time
after wards in consequence. Witness said to him "You
murderous villain, do you want to murder that man, the same as the
other." and struck hum with a large stone at the same time, to
prevent him from following up his attack on Carroll. The prisoner then desisted, and went
towards the house. Mr Edward Ryan, grazier, of Galony; Mr James Wall, of Tumut River, Mr
Thomas Loseby, innkeeper, of Berrima, and Mr John Keighran, innkeeper, of Berrima, were then successively
called on the part of the prisoner, and gave him an excellent character
for humanity, quietness, and general good con- duct. The latter gentleman, (who was one
of the Jury), suggested to the Court that the lamentable occurrence would
in all probability never have taken place, if the house at which it occurred
had not been used as a sly grogshop, (it having appeared from the
evidence that such was the fact), the whole affair having arisen out ofdrunkenness. His Honor
agreed with Mr Keighran in the bad effects of
sly grog selling, but good humouredly hinted that the possibility of
that gentleman s anxiety to put it down, arising in some degree
from his being an innkeeper himself, and on Mr K. rising to disclaim, his Honor assured him that he meant no imputation on his
motives, Mr K. being known as a most respectable tradesman. He merely rallied him on his warmth of
manner. The Jury then instantly found the
prisoner guilty of manslaughter, and he was sentenced, on account of his
excellent previous character, to the lenient punishment of six months imprisonment
in Berrima Gaol |