THE ASSIZES

Trial of Robert Brown For the Alleged Murder of Michael Constantine O’Neill,

at Port Hope, On the 9th, November Last.

William Henderson, - Resides in Port Hope; has known the prisoner some years - knew the deceased also from the time he first came to Port Hope. Was on the wharf on the night of the 9th of November last, when the assault took place. Saw the prisoner on the wharf both before and after the act; he seemed to be a bystander merely, and was apparently uninterested in any thing going forward. Saw nothing in his hand - saw no club either with him or any other person. Saw deceased before and after he was hurt.

He came down to ship some goods on board the Commodore Barrie Steam Boat, and was on the wharf witness thinks as much as an hour and a half before the boat came in. Deceased told witness he expected some trouble that evening, but said he came prepared for it, and had got a pistol with him - did not express any fear, but said he was prepared. There had been some previous trouble between Mr. Crawford’s men and Mr. Brown’s men. Deceased belonged to Mr. Crawford’s party. Does not know if prisoner belonged to any party. He was in Mr. Brown’s employ, but did not live in Port Hope at the time. Deceased told witness he came armed in consequence of the difficulties between the parties. Saw no impropriety, in the conduct of either the prisoner or deceased - saw the latter, before and after the act - heard the noise of the blow and the scream, but did not see it struck - went immediately up and found O’Neill hurt; did not look at the wound till they got him to the cabin of the boat. Asked him where he was hurt. He put his hand to his head and said he felt stunned. Saw the prisoner afterwards, but had no conversation with him. Has heard him since declare he was not guilty of killing O’Neill. (This was in the goal, we understood the witness to say). Mr. Burke was present - he did not say how O’Neill was struck in witness’ hearing. Never admitted to witness having given the blow himself. Witness was always timid of asking him any thing about it.

Cross-examination, - Has known the prisoner since he first came into the country - always considered him a very well meaning young man. Never heard he was a party man - never knew him engaged in a quarrel. O’Neill was on the wharf on the night in question before the witness; was there himself with Mr. Hughes about an hour and a half before the boat arrived. They walked backwards and forwards on the wharf some time together. Can’t say if the prisoner were a religious young man, but he was apparently a very moral one.

By the Jury - The night was neither very light nor very dark - he could see a considerable distance. O’Neill was standing inside the boat about a hundred feet from the witness, when he was struck - does not know if he had moved when witness went up to him. Saw the prisoner afterwards and before - thinks he first saw him in the upper Store house with several others. On seeing the sparks of the boat they all walked towards the end of the wharf together. Saw no club at all at any time, and heard nothing said of a club before the act.

J. H. Grierson - Is Deputy Sheriff of the District, and has charge occasionally of the prisoners. Some time ago the first witness, Sheriff, applied to him to see the prisoner; referred him to the goaler, but he said he would not go without the witness. Went with him accordingly; understood his object was to identify the prisoner, who was in the cells at the time; but does not know if he recognized him. Witness himself spoke to the Prisoner on going in, and called him Robert. - There was no other Robert Brown in the cells - asked him how he was. His conduct in the goal has been most excellent - has known him long, and never knew any thing whatever against him.

Robert Wallis - Lives with Mr. Smart of Port Hope - knew deceased and prisoner - was on the wharf on the night the former was struck. Knows Prisoner only by sight - is not well acquainted with him - his name he knows to be Robert Brown. Witness was on the wharf that night before the act - he should think an hour and a half before - saw no blow, and knows not who did, (or who did it). (Our Notes of the examination of this witness are here very confused - we think he went on to say - O’Neill also said at the time he did not see the blow, or know who struck him.) Saw deceased afterwards on the wharf and prisoner also; the latter had nothing in his hand. Has never heard the prisoner say any thing about it.

By the Jury - Was the length of the Steam Boat off from the parties at the time the blow was given.

Carlton Gifford - Is a constable residing at Port Hope - knew deceased and prisoner; first saw the later on the night in question. Was not on the wharf himself at the time of the assault upon O’Neill. Was employed as constable to bring the prisoner to goal. they were in a wagon, and several other persons were along. When near Mr. Ward’s some altercation took place between the prisoner and the other parties in the wagon, and prisoner said he would fight any man in Port Hope. Witness stopped him, and observed, this may prove a serious thing, or words to that effect. Prisoner made answer - “I gave him no more than he deserved - the poor perjured villain.” - Alluding as witness supposes to a previous law-suit between some parties in Port Hope, in which the deceased was accused of having sworn falsely - did not hear the prisoner say how the blow was given, but in reply to a remark of witness that the man was likely to die, he said there was no danger of it.

Cross-examined - The observation of the prisoner that he had given deceased no more than he deserved, was made as they were going down Mr. Ward’s hill. The wagon was full at the time. Does not remember the names of all who were present, but Mr. Crawford’s distiller was one, and thinks also Mr. Richard Hughes and Mr. Spiers were there. It was in the night time - arrested the prisoner about 11 o’clock, he thinks, but took no particular notice; some hard words passed between the prisoner and the others in the wagon before witness stopped them. Talked to prisoner afterwards all the way to the goal. Witness was not examined before the Coroner: does not recollect to whom he first told of his conversation with the prisoner. Told Mr. Bennet of it a few days after, but does not remember whether before or after the Inquest. Took prisoner to goal the same night the assault was committed.

Glover Bennet - High Constable of the District and resides in Port Hope - Has never been examined before, and has had very little conversation with the prisoner. Was at the Trent at the time he first heard of O’Neill’s being attacked. Mr. Elliott told him the person accused was a nephew of Mr. Brown, and witnessed supposed it must be Samuel Wainwright <sic>, and was very much surprised afterwards to find it was Mr. Robert Brown. Said to him on seeing him in the goal, “Is this you?” he replied, “yes”. Witness then asked him what he was there for, he answered, “for doing justice,” adding that he had had a brush. Witness asked him who with? he said “with the affidavit man” Witness knew that to mean O’Neill, who was often so called by Mr. Brown’s men. Knew no other person so called. Prisoner said he was there for doing justice, as he supposed. These were the words as near as witness could recollect.

Thomas Burke - Has been goaler of the District for some time; was never examined as a witness in the case before. - Prisoner never voluntarily told the witness any thing of the transaction. The day after his committal witness was in the cell with him, and observed to him this is an unfortunate affair: he replied, yes, very indeed. Witness then asked him how it was; he studied a little but made no answer. Witness next said, did you strike him? he replied, he was struck with a club. Witness thought also that he admitted to him at first having struck the deceased, but could not remember distinctly whether he did or no. A few minutes afterwards the prisoner said to the witness, - if he had some paper, and a pen and ink, he would let the whole truth be known, that his Uncle might not be implicated in the affair.

Cross-examined - He had always denied it since to witness, and at the time of the conversation, O’Neill was not dead. - Went to get the paper, and asked Mr. Burnham and Mr. Grierson for some, but did not procure it. Thinks prisoner never distinctly acknowledged to have struck the blow. He had always behaved extremely well in goal.

John Crawford - Resides in Port Hope, knew the deceased Michael Constantine O’Neill, who had been in his (witness’s) employ some years and was not present on the occasion when he ___________________________ November last. On that night he had sent deceased to the wharf to ship some Whiskey and Pork, thinks he was in good health at the time; witness went to bed before he came back. Sometime after he was in bed, the girls rapped at his door and told him Mr. Hughes had brought O’Neill home badly hurt. Witness sent for him to come up stairs, - he did so, and sat down. Witness asked him was he badly hurt; he replied, very badly hurt and soon jumped up off the chair himself, and went to bed. In a few minutes Dr. Samuel Gilchrist came in to see him and bled him. Deceased could speak then pretty well, but in about half an hour afterwards became stupid, and seemed sleepy, in which state he continued without much change till he died. He would answer sensibly any question put to him when roused, but would immediately relapse into a state of lethargy. Witness has no doubt that the wound in his head caused his death. - Had seen the wound but could not judge of its state. Deceased appeared stupid all the time, but thinks he was nevertheless sensible, and understood what was said to him when roused. The whole of one side of the deceased was paralyzed by the injury he had received. He did not speak much. About an hour before his death, as we understood the witness, he asked deceased if he knew him, - he said he did. On the Sunday morning he died, and an Inquest was held on the body. - Knows the prisoner, his name is Robert Brown. O’Neill was sometimes called the “Affidavit man”. Witness supposes he was first so called by some of Mr. Brown’s men. By the Court - O’Neill said he thought he should not get over it, on Friday morning, though he then seemed rather better and spoke a good many words. He still seemed to be in great agony, and was always paralyzed. Witness thinks he was conscious the hand of death was upon him; and to Witness on Friday morning that he knew he was a gone man whereby witness inferred his conviction that his end was approaching.

Re-examined - Conversed with him while in that state of mind on Thursday, Friday and Saturday. (It was here objected that no conversation of the deceased could be evidence unless at the time he was speaking he thought he was about to die) He said not more than a word or two after Friday, but remained always in a state of stupor unless roused. Witness would shake him occasionally and speak to him to see if he were sensible - always asked him first if he knew him (the witness) and he would answer that he did, next asked him who struck him, and he invariably replied Robert Brown; - asked him this twice at least on Friday, and think once or twice on Saturday - deceased always gave the same answer. Asked first if he knew the witness, and he said he did, and held his hand up; - think no other person was present at the time, there might have been but cannot say positively. When he said Robert Brown struck him, understood him to mean the Prisoner. Knows prisoner by sight only.

Cross-examined - Prisoner he understood came to Port Hope only very recently before the night of the assault; thinks it not likely that he had any personal quarrel with the deceased. Believed he had lived there before, but cannot say whether before O’Neill came or not. O’Neill was nearsighted, so much so, we think witness said, as to require spectacles. - He repeated the question as before mentioned to him several times, to see if he were perfectly satisfied that Brown struck him, and to see if he were sensible. First always asked him if he knew him; next, who struck him; the answers were always the same, namely “yes” and “Robert Brown”. Could only get an answer from him by shaking, as after Friday he continued as if dosing or sleeping till his death. He was then in the third year of Witness’s employ.

Dr Goldstone - Is a Surgeon and resides in Cobourg. In November last was called upon in his professional capacity to attend upon the deceased who had been severely injured by a blow on the head at Port Hope. Did so before his death, saw him first on the 10th of November, which witness understood to be the day after he was struck, found him suffering from a compression of the brain, the result apparently of a contused blow which seemed to have been inflicted over the right temporal bone. The patient was in a state of stupor, which is a common symptom when the brain is injured, and continued so until his death. Thinks he could not at any time after the witness saw him be said to have been sensible, spoke to him occasionally, and as usual in such cases, when roused he would utter a sort of muttering noise, but in witness’s opinion did not appear to comprehend what was said to him. Had not known the deceased before. He lingered three days after the witness saw him and then died. Attended a post mortem examination of the body on the 18th (Sunday) and found that the wound alluded to had been the cause of his death, having occasioned a rupture of one of the meningical arteries, whereby ensued an effusion of blood in the head which produced death. The blow seemed to have been given by a blunt instrument.

Cross-examined - Witness attended him on Thursday, Friday, and Saturday, the 10th, 11th, and 12th of November. He died on the 12th or 13th, and on the latter day the post mortem examination was held. Witness attempted himself to make the deceased understand him but without effect. The blow was given upon the temporal and parietal bones which join together, and the vessel broken is situated over the dura mater which is a thick membrane between the skull and the brain. It was a most likely part for a blow to occasion death. In his experience witness had seen many wounds apparently much worse but which nevertheless did not prove mortal. A much severer blow on the back of the head for instance would not, he thinks, have been fatal. The blow in the present instance did not appear to have been an extraordinarily violent one, (or though given on a thin part of the skull) it had not produced a fracture. In witness’s opinion it was decidedly not a blow which in itself appeared to be intended to be fatal.

Re-examined - The blow might have been received in almost any position and the wound was not a long one. The witness was about retiring when he very humanely observed that it would perhaps be right in him to make an additional remark upon the alleged position of the deceased when he received the blow. He understood from the evidence given at the Inquest that the deceased was leaning over a barrel when struck, in which position the artery in question would be far more likely to receive injury, from the consequent determination of blood to the head than in its natural state.

Dr. Samuel Gilchrist, is a medical man residing in Port Hope, was called on the night of the 9th November last, to attend upon the deceased who was suffering from the effects of a blow upon the head. They were just getting him to bed when witness first saw him, bled deceased that night and again the next day, was with him occasionally until he died, attended the post mortem examination and he has no doubt his death was caused by the blow on the head.

By the Jury - Richard Hughes called him in - said to witness they have almost killed O’Neill. As they were walking to Mr. Crawford’s house together had more conversation on the subject. Mr. Hughes told him, he thinks it was Brown’s nephew who had struck O’Neill, and that his brother and Mr. Henderson had brought him home. Did not say to witness that he (Richard Hughes) saw the blow himself but that he had heard two or three blows given, and one of them, he thought struck the deceased down.

Re-examination - Mr. Hughes may have said also that he saw the blows but witness does not remember his saying so.

Dr. James Gilchrist, Surgeon, was also called upon to see deceased and give as his opinion that the immediate cause of his death was extravasation of blood produced apparently by a blow on the head.

L’Aughlin McCallum - (This witness should have been called before the Attorney General observed, but did not know he was in attendance.) Knew the deceased and also the Prisoner, the name of the latter is Robert Brown, was on the wharf at Port Hope on the night O’Neill was struck, saw the Prisoner there also sometime before it occurred, he had a stick in his hand but was doing nothing in particular, could not say what kind of stick it was, saw no violence, spoke to prisoner and told him he had better put away the stick lest it might give occasion for a row, was induced so to caution him as affray had occurred some time before between some of Mr. Crawford’s men and Mr. Brown’s.

Prisoner replied to him that he only wished to keep the stick as some other person (we think the witness said Meeham or Meecham) had sticks under his cloak. Did not see O’Neill on the Wharf, saw no blow, never saw O’Neill afterwards but understood he was on board the boat. Saw no other person with sticks although, there might have been some there, heard no blow or scuffle, was on the wharf himself attending to get the whiskey on board, couldn’t say the size of the stick carried by the prisoner, but thinks it was a light coloured one. Witness ________ at the time with Mr. Brown. O’Neill was called the

affidavit man.

By the Jury - Witness was standing near the gang-way of the boat when the blow is said to have been given.

David Brodie - Is one of the Coroners of the District of Newcastle, and as such held an Inquest on the body of the deceased O’Neill in November last. There were marks of violence on the body particularly of a blow on the head which there could be no doubt from the evidence of the medical men had caused his death. Had no other opinion himself. Prisoner was not present at the examination having been previously committed to goal by the witness.

The case for the prosecution here closed, being precisely 2 o’clock.

An application was now made by the Prisoner’s Counsel for permission to examine their witnesses previous to addressing the Jury, which on their instancing one or two precedents was agreed to by His Lordship, and they called first:

Mr. John Sowden, merchant, who deposed that he was acquainted with Mr. Richard Hughes and that sometime after the affray the said Richard Hughes had distinctly admitted to the witness that he did not see the blow struck, but that he heard the sound of it and it seemed like a blow upon a hat.

William Sowden, Esq., father of the foregoing witness and a Magistrate of the district, next testified to the same thing. He knew Mr. Richard Hughes intimately, and was strongly impressed with the idea that he had heard him say in his (witnesses’s) own house that he did not see the blow struck. Would not swear positively to the fact, but if he had met Mr. Hughes out of that box should have no hesitation in telling him it was so. He said to witness that he had heard the blows and also the cries of the deceased, but not that he had seen him struck. Knows nothing whatever to the disparagement of Mr. Hughes as regards his veracity. To a question of the Attorney General, the witness, subsequently remarked that he had always known Mr. Hughes to be a fine upright young man, and if any mistake had arisen in his mind upon the occasion, witness was sure it must be an unconscious one, for he had no idea that he would willingly say any thing untrue.

David Gillespie - Knows Richard Hughes of Port Hope, and from his knowledge of him would not think him worthy of belief upon his oath - because, in a previous case against the witness himself, he had seen him state what was not true.

Wm. Marsh - Resides in the township of Hope, knows Carlton Gifford, would not believe him on his oath, having reason to believe that he would not scruple to swear falsely.

Cross-examined - Perhaps if he were in the box he would say the same thing of witness.

By the Jury - Speaks of his own knowledge.

By the Court - The general character of Gifford was not good, witness and he were not on good terms at present.

Wm. Oreston, Esq. - Resides in the Township of Hamilton and knows both the Messrs. Hughes; has heard Mr. Richard Hughes, in reference to this transaction say that he heard a blow struck, and then went to look for his brother, - did not say he saw it. Knows them both to be highly respectable young men. It was here suggested to the witness that he had mistaken the names of the two brothers, and on his turning to point out which had spoken to him, as they both stood near him in the Court, it proved to have been

Mr. Charles Hughes, and not Richard as he previously supposed.

This closed the evidence of the defence, and the prisoner’s Counsel, G. M. Boswell, Esq., immediately proceeded to address the Jury on behalf of his unfortunate client, which he did in a most impressive manner, and at great length. We had prepared some notes, and intended to have given a brief outline of the learned gentleman’s appeal upon this occasion which independent of its intrinsic ability, was interesting also for its novelty, being the first instance in this District of defence by Counsel of a prisoner. Under present circumstances, however, as the fate of the unhappy accused is yet undecided, and must again await the fiat of a Jury, it would evidently be improper to publish a decided opinion of his guilt or innocence, as founded upon a previous enquiry. For which reason also, we abstain from noticing the character of His Lordship’s charge to the Jury, other than to observe it was one, the impressiveness of which will not readily be forgotten by those who had the opportunity of hearing it.

Next - John Brown's Murder Trial Cont'



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