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