October 10, 1837

Upper Canada - Newcastle Assizes

Trial of Robert Brown for the Alleged Murder of Michael Constantine O’Neill, At Port Hope, on the 9th November Last -

The main features of this unfortunate case as reported at the time of its occurrence, will be fresh in the recollection of our readers, who will remember that on the night in question, a young man of the name of O’Neill, of respectable connexions, and residing at Port Hope, came to a violent death, under circumstances, as it appeared, of a most savage and wanton character, and that two young men of the place, named Robert Brown and Samuel McKenna, were subsequently committed to goal on the Coroner’s warrant, to take their trial, as the supposed perpetrators, for wilful murder. On Wednesday last, the case was presented to the Grand Jury, who found a true bill against the prisoner, Brown, but ignored the charge against McKenna, who was accordingly forthwith set at liberty. The trial was appointed to come on Friday, and so great was the interest awakened in the case, that at an early hour of that day, hundreds of persons were seen crowding the different avenues towards the Court House, which, in a short time, was filled almost to suffocation. We arrived about half-past nine o’clock, and found the prisoner had already been arraigned and pleaded not guilty. He is a fine athletic young man, of prepossessing aspect, & the youthfulness, and, we may add, modesty of his appearance as he stood at the bar, dressed in a genteel suit of black, evidently awakened a very general & powerful sympathy in his behalf. Availing himself of the change in the criminal law, which extends the benefit of counsel to prisoners, he had engaged the professional assistance of G. M. Boswell, Esq. of this town; and again, at a late hour, the distinguished talents of M.S. Bidwell, Esq. were engaged to defend him. In such hands, we need not say, his case was conducted with the utmost ability and zeal; while, with equal pleasure and approval, we may observe, on the part of the prosecution, that no unnecessary severity, in pressing the investigation of the charge, served to increase the difficulty of their position. The whole bearing, indeed, of the learned Attorney General, in discharge of his duty upon this most painful occasion - the first, we believe, of the kind since his appointment to his present office, as we pray heaven it may be the last - is beyond all praise. It was characterized throughout by a forbearance and humanity, tempered, at the same time, with a due regard to the sacred principles of justice, which was alike creditable to him as a Public Officer, a Christian, and a man. Few, indeed, in that crowded Court there were, who heard his last most eloquently touching address to the Jury, and witnessed the agitation of its delivery, but must have been impressed with an honest satisfaction, however previously opposed they may have been to his appointment, that in the person of Mr. Hagerman, the important and onerous duties of the public prosecutor, had been wisely and happily entrusted. In selecting the jury, a great many individuals were peremptorily objected to on the part of the prisoner, and one by the Crown.

The opening speech of the learned Attorney General was brief, but impressively interesting and beautiful. He began by observing that among the most awful and important of public duties, whether to himself as prosecutor, or the jury who would have to decide upon it, was such a trial as that now before them. He need not tell them that should the prisoner be convicted by them upon evidence, of the crime of murder, there would be no chance of his escaping the penalty, that penalty would be, the forfeiture of his life, in recompence to society for the life he had taken of another. In proportion, therefore to so fearful a responsibility resting upon them, it became of vast importance that they should judge upon the evidence faithfully and dispassionately - not in favour of the prisoner from kindness on the one hand, nor against him from prejudice on the other; but, divesting themselves of all previous impressions, if any such had been imbibed, truly and fairly to decide between him and his country, according to the evidence, as though their attention were now for the first time called to the transaction. In arriving at a decision in so important a case, it would undoubtedly become them to consider attentively the character and respectability of the witnesses whose evidence would be laid before them. In order to this, it was a principle of law that offences should be tried in the neighbourhood of their committal, that jurors might have the benefit of a personal acquaintance with the reputation of the parties. As it generally happened in cases of this nature, in the first instance a strong feeling seems to have prevailed against the prisoner, from a natural sympathy for the fate of the deceased, who was represented to have been most unjustifiably slain by him. Nevertheless, a calm consideration of the circumstances might lead them to the opinion, that he was still not so guilty as to justify his being punished with death, and they might hesitate in their verdict accordingly; in no case was the law more clear. The British Judges had been so careful to investigate all cases of murder, that few could be presented without a parallel. He would now state to them briefly the nature of the evidence upon which the accusation rested. The deceased, Michael Constantine O’Neill, was a young man in the employ of Mr. John Crawford, of Port Hope, and had lived in that town some time. On the night of the 9th of November, in obedience to the instructions of Mr. Crawford, he went to the Harbour Company’s wharf to ship some goods on board the Commodore Barrie steamboat; and as he was stooping down to examine the marks of some of the goods, the prisoner is charged with having struck him a violent blow on the side of the head with a heavy club, which felled him to the ground; and on his attempting to rise, the blow was repeated two or three times. This would be distinctly proved by the medical gentlemen who made a post mortem examination of the body, that the blow on the head had occasioned his death, which occurred two or three days afterwards. Such were simply the facts of the case and if they were proved, it would be for them to judge whether any excuse could be offered for the prisoner, for going where he did and doing what he did. He understood a number of witnesses would be brought forward on the defence, - God grant their evidence might satisfy the jury of his innocence; not upon the evidence merely, but that he might be restored to society, clear of all imputation. The learned gentleman, in conclusion, humanely reminded the jury, that should the evidence in any particular, fail to establish the charge to their entire conviction against the prisoner, it would be their duty to acquit him. He had confided his life to their hands; and they would remember that, next to justice, it became them to be merciful, for mercy was “twice blessed,” and “blesseth him that gives and him that takes!”

The Jury have been locked up ever since, and there seems no chance of their returning a verdict, in which event they will be discharged at the end of the Assizes, (which will probably last until Saturday night,) and the prisoner will be tried again next spring. Any comment upon the case by us in its present state, would, of course, be exceedingly out of place and improper. Cobourg Star, Wednesday.

Fourteen witnesses were examined for the prosecution, and five or six for the defence. The learned Judge commenced his charge at half-past five o’clock in the evening; at the conclusion of the charge the Jury retired. The Court, after waiting for upwards of an hour for the return of the Jury, adjourned, and the Jury was locked up for the night. On Saturday morning the Jury came into Court, and requested the learned Judge to again explain the difference of the construction of the law in cases of manslaughter and murder. The learned Judge gave the necessary explanation, and read over the minutes of the evidence a second time. Up to this hour, eight o’clock, Tuesday evening, the Jurors have not been able to agree upon a verdict, and there seems to be no prospect that they ever will. We believe that by the law of England, a Jury cannot be discharged before a verdict shall have been rendered; and, if we are not mistaken, it is recorded somewhere that Sir Mathew Hale once took a Jury, under similar circumstances, with him, in a waggon through the whole of a circuit. The Judge may, however, procure special authority for dismissing the Jury now impanelled, and for ordering another trial. The prisoner, Brown, can hardly be said to be tried - certainly he is not found guilty. We have therefore thought it proper not to publish anything which might tend to prejudice the public mind.

Cobourg Globe.

Next - Acqittal of John Brown

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