The following is taken from The Sydney Morning Herald law section dated 27.2.1889

LAW. CENTRAL CRIMINAL COURT. FRIDAY. FIRST COURT.

BEFORE MR. JUSTICE FAUCETT. MANSLAUGHTER.

 

Edmund Smith, Peter Cunningham, and George Cartwright, were severally indicted for that they did, at Sydney, on the 12th November, 1868, unlawfully and feloniously kill and slay one Joseph Patrick Fitzsimmons. The prisoners Peter Cunningham and George Cartwright pleaded not guilty. The prisoner Edmund Smith (who was much affected) pleaded guilty.

 

Mr. Isaacs, who appeared for the prisoner Smith, was about to address to the Court some....(some words unreadable).....on that prisoners behalf when...(some words unreadable) counsel by the Attorney-General that what he might then say might possibly prejudice the case against the other two prisoners. Mr. Isaacs, thereupon, declined to address the Court until the trial of Cunningham and Cartwright should have been concluded. He begged leave, however, to place some witnesses in the box who would speak as to Smith's character, and thereupon he called the following witnesses.

 

Mr. Thomas Robinson, ironmonger, of Sydney, being sworn, deposed that he knew the prisoner Smith for the last four years, during which he had been his apprentice; Smith's character was decidedly good; he was attentive and obedient; his general disposition was good; he was peaceable and quite in his demeanour, and had never been known to be a quarrelsome lad.

 

Mr. Thomas Bennett, of Sydney, foreman of Mr. E. Robinson, deposed that he had known the boy Smith for the last three or four years as an apprentice in the establishment of Mr. Robinson; Edmund Smith, was, in his opinion, the best boy he had in charge as foreman; he was of a lively and playful disposition, and not a quarrelsome lad; witness never knew a boy who was less given to quarrels or disputes.

 

Mr. Thomas Glover, of Sydney, deposed that he also knew the lad Smith, and had never known him to be other than a peaceable , well-disposed lad; witness knew him before he was apprenticed to Mr. Robinson, and both before and since the date of his apprenticeship had not seen anything that gave him reason to change the good opinion he had formed of him; he knew the lad well; he had been a playfellow of his own children; the prisoner's father had died within the last three weeks; he had a mother yet living.

 

Mr. Joseph Loitel, a resident of Sydney, also gave the prisoner Smith a good character; he had always known him to be a peaceable, well-conducted, and quiet lad.

 

Mr. John Enfield, a butchery resident in Sydney, gave similar evidence. He had known the prisoner for the last fourteen years - from his childhood; his character was decidedly good; he was not a quarrelsome lad.

 

Mr. George Charles Johnson, an ironmonger, who had been for many years in the employment of Mr. Robinson, also gave the boy an excellent character. Mr. George Rogers gave similar evidence.

 

The Attorney-General said the prisoner Smith had exercised a wise discretion in pleading guilty. He believed from the depositions which had been placed in his hands that he would, most assuredly, have been convicted. The trial of Cunningham and Cartwright was then proceeded with.

 

The Attorney-General opened the case for the Crown. This case was one of manslaughter arising out of a fight between two boys, Edmund Smith, and the deceased Joseph Patrick Fitzsimmons; The prisoners, Peter Cunningham and George Cartwright, had acted as seconds; Cunningham as second to the deceased, and Cartwright as second to Edmund Smith; the fight took place in Bell's Paddock, on the night of the 11th of November last, and continued until the deceased was so fatally injured that the fight was brought to a termination; the boy Joseph Patrick Fitzsimmons was taken to his home at about half-past 9 o'clock, and died during the same night; his death was proved by the evidence of the father of the deceased, who swore that his son was alive and well two hours and a half before he was brought home from the fight; constable Sweeney proved the arrest of Cartwright, and sergeant Mr. Keogh proved the arrest of Smith and of Cunningham.

 

The evidence given by John Crotty (a boy of about 17 years) was to the effect that he had been present at the Old Burial Ground some days before the fight; Fitzsimmons then struck the witness Crotty, whereupon Smith took witness' part; at that time Smith and Fitzsimmons fought one round, but the fight was not proceeded with; it was subsequently settled to continue the fight, in a formal manner, at some future time; the fight came off about four days afterwards, in Bell's Paddock, on the Wednesday night, the 11th of November last; on the evening of the 11th November - early in the evening - Fitzsimmons sent witness to get Cunningham to act as his second, and Cunningham consented so to act; the friends of both parties (Fitzsimmons and Smith) met at the corner of King-street on the night of the 11th, and proceeded to Bell's Paddock, where the fight took place, near the Australian Museum; Fitzsimmons and Smith there fought for an hour and a half; they must have fought about fourteen rounds; Smith was knocked down once or twice; Smith also threw Fitzsimmons several times by laying hold of Fitzsimmons round the waist, putting his chin on his breast, and bending him back; the deceased was so thrown several times, Smith falling on top of him; witness saw both the prisoners acting as seconds to the parties in the fight; the seconds might have interfered to stop the fight, but witness did not see or hear them do so; at the last round both Smith and Fitzsimmons were very weak; Fitzsimmons was the weakest of the two; he was hardly able to stand; in the last round but one Fitzsimmons was also in a very bad state, weak and staggering; towards the last no blows were struck, it was all wrestling; Fitzsimmons was thrown backward or swung forwards as he was put down; when Fitzsimmons fell for the last time Cartwright's mob (those who were taking side with Smith) rushed in round him, but witness did not know whether they did, or did not, do anything to the deceased; saw him, after the last round, lying down on the ground, and breathing heavily; deceased was then insensible and did not speak; Cunningham said that some one was to go for a cab to take deceased home; Cartwright's mob (the friends of Smith) went away, with Smith, after the fight was over; witness, Cunningham, and another party, were the only persons who staid; when witness had brought the cab, he assisted Cunningham and the others present to put Fitzsimmons into it; in doing this they did not let deceased fall as they carried him to the cab; the deceased was with some difficulty, placed in the cab, and the cab was driven up the hill; the cabman made the deceased leave his cab when the cab had gone as far as the steps at the corner of the racecourse; the cabman said that he would be back in a few minutes, but he did not return; witness and the others carried Fitzsimmons home to his father's house; they did not let him fall or otherwise get injured by the way.

 

Cross-examined by the prisoner Cunningham: This witness said that he did not hear Cunningham say that he (Cunningham) had got Fitzsimmons beat; if Cunningham had said that witness would have heard it; saw Cunningham pick up the deceased at the last round; did not hear Cunningham ask Fitzsimmons to give in, but he might have done so; there was a great mob round at the time; Cunningham did not know that the fight was to take place before that very night; witness met Cunningham that night and told him of it; witness heard Fitzsimmons ask Cunningham to come to the fight and to act for him as his second; the deceased said he had been fighting with Smith, and that he had got knocked down by Smith and a man named Williams; witness heard Cunningham tell Fitzsimmons, at the corner of King-street, not to fight; witness heard Cunningham tell the deceased not to fight several times as they were going up the street; Cunningham also said to Fitzsimmons that he had better not fight, but Fitzsimmons would not be advised by Cunningham; Cunningham said to Fitzsimmons "If you fight here (in Bell's Paddock), the police will be upon you"; somebody went to see if the police were anywhere near; Cunningham told Fitzsimmons that he had better not fight several times as they were going up Market-street, but he persisted in his determination; when Fitzsimmons fell, for the last time, Cunningham picked him up in his arms, and said that he should not fight anymore; Cunningham held his head for some time after he fell at the last round, and then he gave deceased's head to somebody else to support; Cunningham helped the witness (Crotty) and others to put the deceased into the cab, and then went across the Racecourse to acquaint deceased's father; witness will not swear that the cabman did not hurt Fitzsimmons head as he took him out of the cab, and put him down on the steps of the Racecourse; witness had never said that he saw the deceased dragged out of the cab by his legs; the cabman seemed in a great hurry to get him out of his cab, but he did not "chuck" him down on the steps; the deceased was carried from the cab to the steps, and from the steps to his home; witness noticed that Fitzsimmons did breathe more heavily when they got him home; when they arrived at Fitzsimmons' house they found Cunningham was there before them; Cunningham asked witness what had delayed them, and witness said the cabman had chucked Fitzsimmons out of his cab, and that they had had to carry Fitzsimmons home.

 

His Honor here cautioned the prisoner Cunningham that the effect of his cross-examination went distinctly to connect him with the fight.

 

The prisoner Cunningham said that he frankly acknowledged he had been at first connected with the fight; he had been induced to be concerned with it up to a certain point, but he had afterwards interfered to put a stop to it.

 

Cross-examined by the prisoner Cartwright: The witness said that he had not, on the night of the 11th of November, hear Cartwright say that Smith should not fight at all; did not hear Cartwright interfere to stop the fight; he might have done so, but witness did not hear him; witness did not take off his coat on the ground; witness did not hear Cartwright say that he had nothing to do with the fight; witness saw Cartwright acting as a second; heard Cartwright tell Smith what he was to do, when he (Cartwright) picked him up; heard Cunningham tell Smith to "close in" with Fitzsimmons.

Dr. Alfred Roberts, being sworn, deposed that he saw the deceased Joseph Patrick Fitzsimmons on the night of the 11th of November, at 11 p.m.; he was then not dead but was insensible - in a state of collapse; he appeared to be suffering under some mortal injury; the deceased did not rally afterwards; witness was not present when Fitzsimmons died; he saw him the next day; he was then dead; it was at the instance of Dr. Walker; on the evening of the 12th of November last witness made there were no external marks of serious injury on the.....(word unreadable).....face of the body - no material contusions; witness found however, on making an internal examination of the skull that there was an effusion of blood on the brain; the effusion was on the right side of the brain, and the contusion causing that effusion was on the left; no large vessel had been ruptured in the head; in other respect but the effusion spoken of, witness and Dr. Walker had found the deceased a healthy, muscular young man; the effusion on the brain so found by witness, was an injury sufficient to cause death; witness believed that death was caused by that effusion of blood on the brain, a violent fall upon the ground - even upon soft turf - would be likely to produce such an injury; witness would suppose that the injury he saw must have been produced during such a fight as he had just heard described......(some words unreadable).....called in to see the deceased at 10 p.m. on the 11th of November last; the deceased was then insensible and in a state of collapse; he had evidently sustained some vital injury; witness directed Dr. Roberts to be sent for, and Dr. Roberts arrived at Fitzsimmons' house at 11 o'clock; fourteen hours afterwards witness assisted Dr. Roberts to make a post mortem examination of deceased; deceased had died at 4 a.m. during the night between the 11th and 12th of November last; witness' opinion as to the cause of death of deceased was exactly the same as Dr. Roberts's.

 

By His Honor: I think the death of Fitzsimmons was caused by what must have occurred during the fight. Andrew Erwin, coachmaker, being duly sworn, deposed that he was present during the fight; when witness first came up, the fight was on; witness was on his way home, and went over to see what was the matter; witness saw Fitzsimmons fall several times; knew Fitzsimmons, as an acquaintance, about six years ago, but had not seen him lately; Cunningham was acting as Fitzsimmons's second; witness does not recognise the other prisoner as having also been present; heard Cunningham say "Go on, you have the - wretch beat now"; heard him say that to Fitzsimmons late in the fight - between the eighth and the ninth round seen by witness; heard that expression made use of by Cunningham afterwards; heard Fitzsimmons say that he felt weak in the back, and would like to lie down on the grass, he did not so lie down; it was when he said, the second time, "Go on, you have the - wretch beat now"; witness saw that Fitzsimmons, towards the last, seemed very weak and exhausted; he Staggered about and could not see Smith when he wanted to hit him; he began to be so weak about the ninth and tenth round that witness saw; witness saw the prisoner Smith throw the deceased eleven times; it was between the eighth and ninth round that Fitzsimmons got the best of Smith in one round; in the last round Smith fell upon Fitzsimmons, and Fitzsimmons was rendered insensible; after that round there was no speech in him, and he was "gurgling" in the throat; Smith went away with Cartwright's mob; witness remained with Cunningham and Fitzsimmons; saw Fitzsimmons taken away in a cab; Fitzsimmons lay on the ground insensible for twenty minutes before he was taken away; the last round was fought at about 9 o'clock; witness heard nobody say that the fight should be stopped.

 

Cross-examined by Cunningham: I was at your side when you said, "Give it to him, go on - you have the - wretch beat now"; the head of deceased was resting on your knee at the time; the way that I came to be at the fight was that I came with another to see what was going on; I was about three yards away; I heard you say something to the deceased after the fight was over; I will swear that I did not press the fight; I did not give the deceased any advice in the matter, good or bad; I had no business to stop the fight - I do not know where I should have been if I had tried to do so; I did not interfere; I was only an acquaintance of deceased; I do know his family, but I have not known him for the last six or seven years; it was at about the tenth round that you used the expression I have mentioned, for the second time; at the last round of all, when the mob gathered round Fitzsimmons as he fell, I did not hear you make use of any expression at all; I did not hear you say that he had had enough; you may have said so, but I did not hear it; to the best of my belief, I did not hear you say so; I did not hear anyone else encourage the fight but you; I do not know who it was said, "Give it to him Joe"; the cabman threw Fitzsimmons pretty smartly out from his cab on to the steps; I will not swear that you told deceased to lie on the grass when he said he felt weak in the back; it was when he so said that he felt weak in the back that you said, "Go a-head; give it to him; you have the - wretch beat now".

 

By the Attorney-General: It was the cabman who lifted him out of the cab; I Saw it because I was going up the hill the Same way; I saw the cabman carrying Fitzsimmons away from his cab, under his arms, to the Racecourse steps; did not see the cabman put the deceased violently down on the steps; I do not think the deceased was then hurt on the

head.

 

By Cunningham: I will not swear that the cabman did not "chuck" the deceased down on the Racecourse steps, when he had taken him to those steps.

 

Thomas Suitor, a lad of about 15 years, deposed that he was present at the fight and saw several rounds; the parties fighting fell several times. The evidence-in-chief of this witness was very brief and unimportant.

 

Cross-examined by the prisoner Cunningham: I was pretty close to you during the fight; I did not hear you say to Smith, "Give it to the - wretch, you have got him beat now"; you might have said so, but I did not hear it; I did not hear Fitzsimmons, during the fight, say that he felt weak; I did not hear you ask Fitzsimmons to give in.

 

Francis Suitor (brother of the last witness, a year or two older) deposed that he too was at the fight; during the last rounds Fitzsimmons was evidently very weak, staggering about whenever he got up to renew the fight; Fitzsimmons asked to be allowed, between the rounds, to lie down on the grass; he was allowed to lie down for two or three minutes, when time was called by Cunningham; he was staggering before that; this was two or three rounds before the last; did not hear either of the seconds talk of stopping the fight before the last round had been fought; was several yards off at the last round; did not hear any but Cunningham tell the deceased how he was to hit.

 

By the prisoner - Cunningham: I never heard you or anybody else, during the fight, say to the deceased, "Give it to the - wretch, you have got him beat now"; I should have heard it if you had said so; at the second round from the last deceased get up by himself when time was called.

 

Charles Creighton (another lad, aged about eighteen years) deposed that he had known that there was a fight coming off; was at the corner of King-street on the 11th of November last, when it was arranged to go and have the fight out at Bell's Paddock; saw the fight which there took place; Fitzsimmons generally fell under Smith; remained, after the fight was over, with Fitzsimmons till he was removed in a cab; never heard you (Cunningham) say, "Give it to the - wretch, you have got him beat now"; I should have heard you if you had said so during the fight; you picked him up nearly every round; he got up sometimes himself.

 

By the Attorney-General: Time was called by both Cunningham & Cartwright. This concluded the case for the Crown.

 

For his defence Cunningham called Charles Camden and James Murphy, but their evidence was unimportant - not material either for the defence or the prosecution.

 

Cartwright called no witnesses, but it was said that a respectable witness was to have been present, who had declared his intention to speak to his character. The prisoners did not address the jury, but left the case in their hands.

 

His Honor summed up, pointing out the principal facts disclosed by the evidence, and explaining that by the law all present at the fight, and abetting the same, were guilty of manslaughter.

 

The jury retired to deliberate, and after a short interval reappeared in Court, and returned a verdict of guilty against both of the prisoners - Cunningham and Cartwright.

 

His Honor made an impressive address to the prisoners in passing sentence upon all three prisoners - Smith, Cunningham, and Cartwright. The sentence of the Court was twelve months imprisonment in Darlinghurst goal, with hard labour, for the prisoners Cunningham and Cartwright; and nine months imprisonment in the same goal for Smith.

 

This was the last case to be tried at this gaol delivery, and the Court thereupon rose.