A chance finding in an old newspaper helped to shed a little more light on Robert Hughan’s story. The ‘Moreton Bay Courier’ from Saturday, January 16, 1858 carried the story of a murder trial in which Robert found himself a key witness, just over eight years after his arrival in Moreton Bay:-
William Marns was indicted for that he, on the 26th September, 1857, at Maryborough did feloniously kill one Jacob Entermann. The prisoner pleaded not guilty. Mr. Milford and Mr Roberts were instructed by the Judge to act as counsel and solicitor for the prisoner.
Mr. Pring opened the case by briefly laying before the jury the difference between the crime of murder, and manslaughter. Murder was the crime of wilfully depriving a fellow creature of life, without justifiable cause or reason. He was sure they would give their undivided attention whilst he opened the case, the facts of which were not difficult if they believed the evidence which would be adduced. If they gave credit to that testimony it would show as coldblooded a murder as ever was committed. He could not see any grades in murder the characteristic of which was that it was done with malice prepense. If the killing was without malice, it was reduced to manslaughter. It was in their power if they saw it fit to give a verdict of manslaughter, but they must be satisfied, it was so reduced. In manslaughter the prisoner was supposed to take the life of another, from some well-grounded provocation. The facts of this case, he conceived, would not enable them to reduce the crime. If, however, they were not satisfied that the facts constituted the crime of murder, they would return a verdict of manslaughter. ( Mr. Pring then stated the facts).
Evan Griffith Williams deposed: I am a second lieutenant in the Native Police. I have seen the prisoner once before. I was riding out of Maryborough on the 26th of October or September, and I met a man named Williamson at the Nine-Mile Creek. I rode on as hard as I could to the Twelve-Mile Creek, where I found five drays camped.
I saw a man lying dead on the ground with a sheet or blanket over him. I examined the body. I did not know his name. He was lying with his face in a pool of blood on the ground; there was a hole in his forehead. I should think it was made with a ball. His face was downwards; he was lying on his stomach.
I waited a few minutes, when my trooper came up. I sent him to the right hand of a ridge a little way off, and I went to the left. After riding a short time I heard a black boy belonging to the drays call out. I immediately cantered back, and the black boy and I came up to the prisoner. It was about 300 or 400 yards from the drays. He was lying on his stomach. He had a white hat, which he had laid under him. The grass was very long, and he had broken down a young sapling and got it over his back.
I told him I wanted him, and he looked up and asked me “What for?” I told him for shooting the German. He said nothing at that time. He told me as I was taking him back to the drays “he did not know the gun was loaded.”. Afterwards he said “he was very sorry for having done it.” He was not drunk; but he had been drinking. He was perfectly sensible. He might have had two or three glasses. He at one time walked well, and at another appeared the worse for liquor. He would walk 100 yards quite well, and for another 100 yards he would appear to be a great deal the worse for liquor.
When I first went to the drays there were present Robert Hughan, George Smith and Cane. I met Williamson on the road about three miles from the dray. There were two black boys with the drays.
I searched the deceased’s pockets and found in the left hand pocket 6s. And a ring, and in the right 3s., a knife, tobacco, and watch box. The men at the drays were quite sober. The body was not very cold when I saw it. He might have been dead a quarter of an hour. The body was stiff. No medical man saw the body in my presence.
By a juror: The prisoner was telling me how he came to the colony when I was taking him to the drays.
By Mr. Milford: One of the first things he said was that he was sorry for it and that he did not know it was loaded. I examined the gun I saw lying. It was percussion. It was a common fowling piece. I might have said it was a good lock and easily pulled. It was an easy lock but not particularly so. The ground where I found the corpse did not slope; it was perfectly level.
The prisoner was not the least agitated the whole way, but he said he was very sorry. He might have said the gun went off accidentally. I gathered that he meant no malice aforethought. I think he said he had no ill feeling and had never met the man before. He jumped up on his legs but I told him not to move.He was out of sight of the drays. He afterwards resisted. I think he has got the mark on his ear.
By Mr. Pring: I was armed with a brace of pistols.
By the Judge: I saw no other guns.
By Mr. Milford: I think the gun was leaning against the trees.
By the Judge: I observed that the gun had been fired off.
ROBERT WILLIAMSON: I know the prisoner. He was employed by my brother-in-law as a bullock-driver. In September last I was on the road between Maryborough and Gayndah. Prisoner was driving one of the drays with me. There was no one in company with me.
We were camped at the Twelve-Mile Creek, about that distance from Maryborough. It was the 26th of September, or thereabout. There were two drays there in the afternoon, 3 left in the morning. I knew a German; he came to the Twelve Mile Creek on that day. He was travelling with the drays that were coming down the country. I think he was going to Maryborough. There was a man shot that day at the ground.
About 3 o’clock William Marns called to me from under his dray. There had been drinking going on but not to excess. There had been a gallon of rum in 3 or 4 days among several parties. The prisoner when he called out was the worse for liquor. I was sober.
He said he had sold a dog. We had two dogs with the drays. He said he had sold the dog. He did not say what for. I told him he would do no such thing. I would not allow the dog to go from the dray. He said that he had sold it to a German. The German was underneath the prisoner’s dray with him. It was about 3 or afterwards.
The German took the dog. I rose up and took the dog from him and tied it up. The German went up to the prisoner again. The prisoner had never come out from under the dray. The German sat down underneath it. I did not hear what conversation they had. I did not listen to it. It did not seem to be in high language. It appeared to be a sort of argument. It went on an hour or more. It was off and on, perhaps; they were not arguing all the time.
They both came out from under the dray. I was sitting at some distance. Three other men were with me: Hughan, Smith and Cane. The prisoner counted out some money to the German. When they came out from the dray he gave it to him. The German came and shook hands with almost all the men there. They might be about 20 feet or better from my party when the money was counted out, and about 45 or 50 yards from my dray.
The prisoner after that walked off towards my dray. I could not see whether he went towards my dray. I saw him return in a very short time. He had a gun in his hand. He came up to the tail of his own dray. The German was at this time walking away from the dray to go to the other side of the creek to get his blankets. He did not go to the other side of the creek. He saw the prisoner with the gun. He turned round and walked up to him. The prisoner said “ Give me my 6s. Or give me my money”. He instantly raised the gun and fired. The German lifted his hands before the prisoner fired. The German was about six feet from the prisoner when the latter fired.
I went up in about a couple of seconds after. I examined the German. I found him bleeding from the forehead and dead. I saw a small round mark on his forehead. The prisoner made off. He said “What have I done?” He might have stopped one minute or so. That is all he said. He threw the gun down. It was my gun. I put my gun on my dray when I started from Maryborough. The gun was loaded then. I loaded it with powder and ball. The prisoner and several other parties were present. The prisoner procured me the ramrod. I couldn’t say whether he saw what I put into the gun. It was the morning previous to the discharge of the gun. I told the prisoner afterwards that the gun was loaded.
I was distant about 18 or 20 feet from the prisoner and the German when the gun was fired. The prisoner was not sober when he fired the gun. He was the worse of drink; he could walk. I don’t know how much liquor he had that day.
After this I instantly went after the horses. I got one and rode towards Wide bay as hard as I could. I met Lieutenant Williams on the road. He instantly made along the road. I went right in to Maryborough.
The bore of the gun was large; a cap lock. I have worked the lock, it was in good order. There were no other guns in the dray. I saw the body afterwards. I saw Dr. Palmer examnine it. The German did not say anything when he lifted his hands. I believe it was a friendly way he had of putting them on people’s shoulders when he went to speak to anyone. The German was not sober. He was a good deal the worse for liquor.
I know Robert Hughan; he was present and sober. I know George Smith, he was present. He was sober enough to know what took place. I have known the prisoner since the beginning of September.
By Mr. Milford: The prisoner was a quiet, orderly, sober man. From all I have seen and heard he was a quiet good-natured man. The prisoner was in the act of raising the gun when it went off. The gun was not to his shoulder. The muzzle was upwards.( Witness described the position of the gun). I could not say whether he was in the act of raising the gun when it went off. It went off instantly. The German to all appearances was coming back to give him a friendly shake of the hand. There was no other conversation to my knowledge. I told the prisoner before I left Maryborough that the gun was loaded. I am quite sure he said give me back my money, or my 6s.
The German was in a direct line between the prisoner and me. He might as well have shot me. The shot might have struck me if it had missed the German, but it would have escaped the others. When he said “What have I done” it was in a crying, troubled sort of manner.
I slept under my dray. I had the gun with me at night for protection. From the time we left Maryborough to the time the man was killed would be about 30 hours. The gun might have been fired off without the prisoner knowing it. I did not hear the prisoner use any threat. They appeared to be friendly. By argument, I mean that one spoke and the other replied. When the prisoner said “I’ve sold the dog”, the German heard him. The German went by the name of John the German. The words could not have been “good day John”. The ground had a slight rise there. I did not notice that the prisoner stumbled. We were all too much confused to stop the prisoner. We all thought it was an accident.
By Mr. Pring: We thought it was a lark.
I know Williamson and the prisoner. I met them at the 12 Mile Creek, that distance from Maryborough, in September last. It might be 4 in the afternoon. I was riding. My dray was at the camp, and I stopped there. There were 4 or 5 men under Marn’s dray. There was a German. We generally called him Jacob. They were talking. I don’t know what about.
I went to where Williamson was having his dinner, and got some dinner too. I remained there an hour or more. The prisoner sang out to me that he had sold a dog for 6s. To a German. Williamson said he should not sell the dog, that he had it in his charge. Williamson took the dog from the German and tied it up. The German was sitting with the men under the dray. The prisoner was not sober. He was not very tipsy. There was no drinking going on at that time. The German was neither drunk nor sober. The German and Marns went under the prisoner’s dray, and the others came to us under the tree. I heard nothing between them. They were conversing together. I could see and hear them laughing. They might have been an hour under the dray.
After that I saw the German and Marns on their feet. I heard the German ask Marns for the 6s., or 6s.,as he wanted to go into Maryborough. I saw Marns put his hand in his pocket, and I heard a jingle. I supposed he gave him money. The German came and shook hands with us, and wished us all good bye, saying he was going to fetch his blankets. He was going that night into Wide Bay.
The German walked about two or three paces from the dray towards the other side of the creek. The prisoner had not got the gun when he gave the 6s. Nearly instantly after he got the gun. The prisoner came round when he had the gun from the end of his own dray. He might be more than 20 yards from the German then. He sang out to the German “You give me that 6s or my 6s.” I don’t know which it was. The German was walking back to him quick. The German neither said or did anything. I saw the German fall and heard the report of the piece. It was in Marns’ hand. The gun was against Marns’ body below the hip, the muzzle towards the German. I did not see where the prisoner’s hand was. I think he was five paces from the German.
I did not think the man was shot. I went up to him. I saw some blood coming from his forehead. I examined the body afterwards. One ball went through the forehead and another below the eye. He was quite dead. I did not see what the prisoner did with the gun. I said “You have shot the man. You are a murderer.” I went for a horse and did not see him again.
By Mr. Milford: I do not recollect the prisoner crying out. It was level ground. The German was in a direct line between where the men were sitting. Williamson and Marns’ drays might have been 10 or 15 yards apart. I did not see where the prisoner got the gun. I saw the gun lying opposite the prisoner’s dray afterwards.
I have known Marn 9 or 10 months. He had always borne the character of a quiet inoffensive fellow. They were jesting and laughing under the dray. The German always held up his hands when he was talking to anyone. He was about to put them on Marn’s shoulders. I did not think the man was shot until I heard the blackfellow crying. I had no idea that Marns had any intentions of shooting him. I don’t remember hearing him say “My God, what have I done.”
I am a bullock driver. I know the prisoner, and Hughan and Williamson. I was in the prisoner’s company in September last at Twelve Mile Creek. Williamson and Hughan were there. I think it was the 26th September. I was going into Maryborough. The prisoner was not travelling in my company. The prisoner was there with his dray before I came there and Williamson. I got to the camp about 4 o’clock in the afternoon. I saw the prisoner, he came across the creek to me. There was a German with me. He was called Jacob and I have heard him called John. I cannot recollect his surname. I think Jacob Entermann was the name. I believe I have heard it. The deceased was with me. I went over the creek with the prisoner to his dray. The German went with me. I had a glass of rum when I went over. The German took some rum, I don’t know whether the prisoner did. The German was not drunk; he had been drinking before, he had either one or two glasses. Marns had been drinking, he appeared to know what he was talking about.
We sat down outside the dray after we had the rum. Williamson and Hughan were away.We might have been there about half an hour. Marns had a dog tied up under the dray. He sold it to the German for 6s. I saw him give the prisoner some silver. We all three went over to the fire. We staid(sic) some time. Marns and the German went to the prisoners dray and lay under it. I sat a few paces from the fire. They were conversing under the dray. When they got up the German put his hands upon Marns’ shoulder. I did not hear Williamson’s voice. The dog was tied up to the dray. The German was taking the dog away to my dray. Williamson asked him where he was going to take him. The German said he had bought the dog. Williamson said he should not take him away, he was left in his charge to take to a man of the name of McQuayne. Williamson got the dog. The German walked back to Marns’ dray. The German came back to the fire. He remained at the dray a few seconds after the dog was taken. He did not leave Marns until they both got up together.
I saw Williamson and Hughan sitting at a tree. I saw the German go up to them after he came from under the dray. The prisoner Marns was somewhere handy the dray. The German when he left them was going to cross the creek. He went to Marns and put his hands on his shoulders, and said “Give me my 6s.” The prisoner said nothing with him then. The prisoner pulled out some silver and gave it to the German, who came over to where we were sitting, and shook hands with me. He stood there. While he was shaking hands with us, Marns went away 40 yards to the far dray. He came back from the dray with a gun. The German was standing between us and the prisoner. The prisoner, when he came up, said “Give me the 6s.” The German held up his hands, and was walking towards him. The next thing I heard the report of the gun, and saw the German drop. The prisoner had the gun below his hip. I can’t say how it was sloping. I can’t say on what part of the gun the prisoner’s hands were, one was by the stock. The prisoner did not say anything, but walked away a few paces and threw the gun down. The German was dead. I next saw the prisoner when Lieutenant Williams brought him back.
By Mr. Milford: I have seen the prisoner for three or four months. He was always a very quiet man. I did not hear what they were talking about, or whether they were laughing under the dray. The prisoner was off before I could apprehend him.I did not say “You had better stop”. I did not attempt to seize him. I don’t know that any of the others did. The German was holding up his hands in a friendly way. I heard no quarrelling. There was no row about the dog after it was tied up.
By Mr. Pring: We all ran up when the German fell. We thought it was only sham.
EDWARD FIELDING PALMER:
I am a duly qualified medical practitioner. I was requested to proceed to the Twelve Mile Creek to examine a body in September. It appeared to be the body of a German. Williamson was there. The first thing I noticed was a large round hole about the middle of the forehead, large enough to admit the finger. It appeared to be a gunshot wound. I traced it to the back of the head. It went right through, having an orifice to the back corresponding with the one in front. There was another orifice also, a gunshot wound in the corner of the left eye. Either wound would cause instant death.
Mr. Pring applied to amend the information by adding after John Enterman the words alias John the German alias Jack the German.
Mr. Milford addressed the jury for the defence, remarking that he had a most solemn and onerous duty to perform, and a most fearful responsibility resting upon him, for by the slightest mistake in conducting the defence the worldly hopes and prospects of the man at the bar would be greatly periled.
He begged their most earnest attention to the case. He had nothing to complain of on the part of the crown. The prisoner by his folly had pursued such a course that the Crown had no alternative but to put him upon his trial. He thanked his learned friend for the temperate manner in which he had opened the case. There was no malice shown on the part of the prisoner. When a man killed another the law pre-supposed malice. But the prisoner had no motive to kill. What man would destroy God’s image without a motive, would take away the life of a fellowman
“Cut off even in blosssoms of his sin
Unhoused, un____, Un____,
No reckoning made, but sent to his account
With all his imperfections on his head.”
They were asked to believe that the prisoner took the life of a friend, an innocent person, without any conceivable motive. Unless they came to that conclusion it was not murder. He was afraid that in this case, as in so many others, the fiend alcohol had something to do with it. But although the rum bottle had nothing to do with the crime in this instance, it might have brought on some negligence.. There was no evidence to show actual malice. They might dismiss from their minds the matter of the dog as that appeared to be, after all, only a joke. If there had been any real sale of the dog, he would not have shouted out to Williamson “ I’ve sold the dog.” The money was instantly given back when it was asked for. What was there in the transaction to create any ill feeling?
The case was this- one man comes up in a friendly way to another and then the other without apparent motive does an act unparalleled in atrocity. The character of the prisoner showed he would be the last in the world to commit such an act. The gun might have been half-cocked. The gun was not held in such a position as any man would have held it had he intended to shoot another. It was as natural to bring the gun to the shoulder as it was to walk. Would he fire in such a position that the slightest divergence would have sent the ball among his own mates, and shot some of them dead? It was not necessary for him to go through the evidence, but they would remember that two of the witnesses were sure that the prisoner said in a voice of agitation, “My God, what have I done?”
He afterwards went to a place 300 yards off. The opinion of the witnesses must have been that it was altogether an accident, as no attempt was made to seize the man. If a man were to be tried for the result of an accident, there were many cases in which men, in a much higher position in life than the prisoner, would have to take their trial. The prisoner being most probably unaccustomed to the use of fire-arms, it was likely it was a simple accident. Although the law implied malice, there had been no malice, either express or implied, shown in the case. It was no murder, but a mere accident.
Mr. Pring, in reply, observed that the defence was one which he never anticipated would have been set up, and it could not in this case be adopted by them. With regard to the assertion that this was an accident by the incautious use of fire arms, he submitted that the facts proved it to be very different. In looking through the testimony to ascertain whether the prisoner was guilty of the intention to kill, although the law presumed malice, it was better if they could see some moving power. He submitted there was an apparent motive. The jury must say whether the case showed actual as well as implied malice. He did not wish to be hard upon the man, but justice was stern, and when justice demanded it his duty must be preferred.
Although the prisoner stood in that position, an unfortunate man had by his act been brought, without a moment’s warning, to a violent and untimely end. The evidence was of a most clear character. The witnesses were not drunk. Although their evidence differed in an immaterial variance as to the expressions used, there was no substantial variance. Drunkeness was no excuse for crime, nor did the evidence show the parties were in such a state as to not know what they were doing.
(The learned counsel then went into the evidence of the dog).
Whether the German and the prisoner were on good terms under the dray did not appear. The money was then given back to the German. The latter and the prisoner shook hands, and the German was going for his blanket.
Now mark the conduct of the prisoner; he went 50 yards to his dray, brought back his gun, which he had seen loaded; said to the German “give me my six shillings”, fired the gun, and the man fell. Was that the result of accident? The motive was apparent from the man’s words. Although spoken of as a man of quiet character, the quietest men were often the greatest fiends when in drink. Where did he get the gun? Not lying close by him. He got it for a purpose, and for what purpose , was apparent from his acts. These actions drew upon him this conclusion, that he meant what he did. If they thought he had not sufficient mastery over himself they would, under his Honor’s direction, find him guilty of manslaughter. The witnesses did not speak of any provocation. No doubt he cried out “Oh my God” as a man might well do under such circumstances. What was his conduct? Did he run up to the man and assist him? No, he ran away like a coward and hid himself among the long grass.. What was his acting but that of a man who was conscience stricken?
His Honor in summing up said there were three points of view under which they might regard this case:-
1st. Was it a case of murder? If so, the evidence should show that he actually intended to kill him in consequence of some feeling that had been called out previously. Intoxication had nothing to do with it, but there was no evidence to show that the prisoner did not know what he was about. If they conceived there was no express malice, the next question would be
2nd. Whether it was a case of manslaughter? It would be manslaughter if the prisoner went to the dray for the gun with the intention of frightening the deceased and that through a negligent accident the gun went off. There would in that case be no express malice, but the prisoner would be doing an improper action when an accident occurred, by which the man was killed.
3rd. Was it accidental altogether? The question could hardly arise. If so, why did the prisoner go for the gun? If they thought it was a case of accident, they must acquit the prisoner. If they thought there was an attempt to point the gun to frighten him only, it would, perhaps, justify them in thinking the prisoner was guilty of manslaughter; but if they thought he went for the gun, for the purpose of shooting the deceased, it would be murder.
(His Honor then read Hughan’s evidence and concluded his summing with some observations on it).
The jury retired for a short time and on their return gave a verdict of manslaughter.
The Judge then sentenced the prisoner to three years hard labour on the roads or public works of the colony.