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1874, Ami Captain - Unfit For Publication
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Depositions for Ami Captain 11 Apr 1874 Armidale trials 1

No. 74/18

J Mackmanus PM,
Police Office, Walcha
23 February 1874

Joseph George Long-Innes, Attorney General, Sydney

Sir
    In transmitting the Depositions in the case noted in the margin (Regina v. Emi Captain Sodomy) we are not aware of any salient points particularly requiring notice the prisoner has been committed to the Armidale Gaol without Bail.

    I have the honor to be,
       Sir,
    Your most obedient servant.

[Signed] J Mackmanus  PM and Abraham Nivison JP. 

~ ~ ~ ~ ~

Information – (General Purposes.)

New South Wales,
TO WIT.               }

Be it remembered, that on this ninth day of February in the year of Our Lord one thousand eight hundred and seventy four at Walcha in the Colony of New South Wales, Charles Abbott Senior Constable of Police of Walcha appeared before me, the undersigned, one of Her Majesty’s Justices duly assigned to keep the Peace of our Lady the Queen in and for the Colony of New South Wales, and informs me he has cause to believe and suspect and doth believe and suspect that on the 2nd and 4th day of January in the year of Our Lord one thousand eight hundred and seventy four one Ami [aka Emi] Captain   of Brango Plains  [in the district of New England, NSW; where the Fletcher and Gerard stations are] did assault and ill treat – one Joseph Wagner   with intent to commit the crime of sodomy  against the will of the said Joseph Wagner contrary to the Act in such case made and provided; whereupon the said Charles Abbott prays that I, the said Justice, will proceed in the premises according to law.

[Signed] Charles Abbott. Sworn at Walcha in the said Colony, on the day first above written, before me.

[Signed] Geoff H Erratt, Justice of the Peace.

~ ~ ~ ~ ~

Warrant to Apprehend a Person charged with an Indictable Offence.

To Charles Abbott, Senior Constable in the Police Force for the Colony of New South Wales, and to all other Constables in said Force. Whereas “Ami Captain” of Brango Plains in the said Colony, Shepherd, hath this day been charged upon oath before the undersigned, one of Her Majesty’s Justices of the Peace in and for the said Colony of New South Wales, for that he, on the 2nd and 4th day of January now Instant, at Brango Plains, in the said Colony, did assault and ill treat one Joseph Wagner with intent to commit the crime of Sodomy against the will of the said Joseph Wagner. These are therefore to command you, in Hew Majesty’s name forthwith to apprehend the said “Ami Captain”, and to bring him before me or some other of Her Majesty’s Justices of the Peace in and for the said Colony, to answer unto the said charge, and to be further dealt with according to law. Given under my hand and seal, this 9th day of February, in the year of Our Lord one thousand eight hundred and seventy four, at Walcha in the Colony aforesaid, Hope Erratt, Justice of the Peace.

~ ~ ~ ~ ~

Police Court Walcha, February 11th 1874.

    Charles Abbott being duly sworn states, I am Senior Constable of Walcha. The information just now read is mine which is true to the best of my belief. About 11 o’clock yesterday morning the 10th I arrested the prisoner at Brango Plains and asked him if he understood English if I read it to him producing the Warrant. He said Mr Brazel  tell me what you say, I then read the Warrant and Brazel made him understand what I read. He said “The bloody liar; German boy no good.” Afterwards he said “Joe steal my matches out of my trousers pocket and I hit him, he ran down to the house.” I brought him to the lockup at Walcha.

[Signed] Charles Abbott. Sworn before us at the Court House Walcha February 11 1874.

[Signed] John Fletcher,  JP, Abraham Nivison, JP.

~ ~ ~ ~ ~

Police Court Walcha, February 11th 1874

    Joseph Wagner having been examined as to the nature of an oath was then sworn, and states that on the Friday and Sunday before he went to “Hall’s Creek” that I complained of Ami Captain’s conduct. We went to “Hall’s Creek” on a Thursday.

    The first night Captain came to me was a Friday night – me and Jack Shaw went up to the hut to go to bed. Jack Shaw lit a candle then Captain came in and said there was plenty of room for three to sleep. Shaw went away to see to his horses and Captain went to bed and I did so too – Captain caught hold of me and tried to put his thing in my backside. I said, “Captain, don’t do that. Let me go.” I gave a rush and got away from him and rushed down to the kitchen in my shirt and complained of what had been done to me and Mrs Brazel

2

who were in the kitchen I was told to go and sleep along with Ned. I asked where was Ned. She said he was with Jack Shaw looking after the sheep. I then saw Shaw come round the fence and ran to him and complained to him of Captain. Shaw and me went up to the hut and ordered Captain out of the bed. Captain looked very fierce at me when he got up. I took my trousers and ran down to the horse and slept with little Ned. I told Ned what Captain had done, in the morning I went up for my hat and boots and Captain pulled me on the shoulder and said “me very sorry” – during the next day I was telling Brazel and Shaw about it and Brazel said to Captain “You was doing

3

Joe over last night.” Captain said “No hear”, and I said “My word you did.” Captain made no reply – Saturday night I did not sleep in the hut – Sunday night I went to bed and as soon as I was in bed Captain came in and got me next to the slabs. He put his arms around me and held me. He was shivering. I was undressed and Captain had on only his flannel shirt. He put his thing in my backside; by his thing I mean his private parts – he held hold of me fast and I could not get away. I said “Captain don’t do that, you are hurting me.” He said “No fear me. No hurt you. You are bloody rogue. I will kill you.” He did not leave me go until

4

he was done. He then went away to his own bed. I told Jack Shaw came in soon after and I told him Captain had been in the bed. I believe Captain could hear from his end of the hut what was said on the other side – I did not complain of what had been done as I was ashamed – at the time Captain held me in bed he said he used to do it to another boy that was there. He was a good boy – he had no tongue.

    By the prisoner: I took no matches from you.

[Signed] Joseph Wagner.

    Senior Constable F Abbott asked leave to amend his information from the 1st and 3rd of January to the 2nd and 4th of January. Leave granted. 

5

  Upon the application of the Police the case stands remanded until Wednesday the 18th Inst to procure evidence. Sworn before us at Walcha Court House, February 11th 1874.

[Signed] John Fletcher, JP, and Abraham Nivison, JP.

Before Geo Hope Erratt Esquire, JP.

    Emi Captain you remain charged with attempt to commit SODOMY – there were no Magistrates but one, and one witness being absent the prisoner upon application of the Police stands remanded until Monday the 23rd February 1874. Samuel Brazil and Edward Hampson appear to give evidence and were bound over to appear on Monday next the 23rd in the same case. [Signed] GH Erratt, JP.

~ ~ ~ ~ ~

Police Office, Walcha, 23rd February 1876

Present

The Police Magistrate and Abraham Nivison Esquire JP.

Case Resumed

    This deponent James Brazil being duly sworn says as follows, I know the prisoner I also know Joseph Wagner, I recalled one night early in January last Wagner coming down to the kitchen at Brango Plains. I was in bed, he complained that the chinaman would not leave him alone, Mrs Brazel, my wife, told him to go and sleep with another boy, Edward Hampson. The next morning I asked the chinaman what he was doing with the boy. He said “No bloody fear; he was doing nothing” – the boy did not tell me what the chinaman did. He merely said the chinaman would not leave him alone.

[Signed] Samuel Brazel. Sworn before us this 23rd February 1874.

[Signed] J Mackmanus, PM and Abraham Nivison, JP.

2

  And this deponent John Shaw being duly sworn saith as follows: I know the prisoner now before the court. I recollect a night early in January last I went over to the yards. A native dog had got into the sheep, on my return I went to bed. I saw Brazel up. I went over to the sheep again with a boy named Hampson. On my return I saw young Wagner come down the hill to me. I asked him what was the matter. He replied, “the chinaman”, meaning the prisoner, “got into bed with me”, and tried to keep him in bed. He kept him for a while and repeated pulling him about. The boy at last jumped up and got away. It was in the same bed that we and the boy used to sleep in. The chinaman’s bed was in a room opposite in the same house. When I came into the room I saw the chinaman in my bed. I asked him what was he doing in my bed and

3

told him to get out. After a while he got out and went to his own bed. He was undressed. I only went over to the sleep once. I went from my own bed to Brazel’s first.

[Signed] John (his X mark) Shaw. Sworn before us this 23rd February 1874.

[Signed] Abraham Nivison, JP and J Mackmanus, PM.

4

  This deponent Edward Hampson being duly sworn saith as follows. I know the prisoner “Emi Captain”. I know Joseph Wagner, I recollect early in January last Wagner coming to sleep in my bed with me. It was the night the sheep were rushed. He told me that Captain, meaning the prisoner, would not leave him alone in the bed. He kept squeezing him in the thighs, he showed me how the Captain did it, he did not tell me anything more.

[Signed] Edward Hampson. Sworn before us the 23rd February 1874.

[Signed] J Mackmanus, PM, and Abraham Nivison, JP.

~ ~ ~ ~ ~

(N., 11 & 12 Vic., Cap. 42.)

Statement of the Accused.

New South Wales, Walcha
TO WIT.                           }

Ami Captain stands charged before the undersigned, three of Her Majesty’s Justices of the Peace for the Colony aforesaid this 23rd day of February in the year of Our Lord one thousand eight hundred and seventy four for that he, the said Ami Captain on the 2nd and 4th days of January 1874 at Brango Plains Station, in the said Colony, did commit the abominable crime of sodomy on one Joseph Wagner and the examination of all the witnesses on the part of the prosecution having been completed, and the depositions taken against the accused having been caused to be read to him by me, the said Justice, (by/or) before whom such examination has been so completed; and I, the said Justice, having also stated to the accused and given him clearly to understand that he as nothing to hope from any promise or favour, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall say may be given in evidence against him upon his trail, notwithstanding such promise or threat; and the said charge being read to the said Ami Captain and the witnesses for the prosecution Charles Abbott, Joseph Wagner, Samuel Brazil, John Shaw and Edward Hampson being severally examined in his presence, the said Ami Captain is now addressed by me as follows:– “Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so; but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial;” whereupon the said Ami Captain saith as follows:– “No Sir. Me no understand. Speak ‘England’.” Taken before me at Walcha in the said Colony, the day and year first abovementioned.

[Signed] J Mackmanus, PM, and Abraham Nivison, JP.

    Emi Captain stands committed to take his trial for the offence with which he stands charged to the next Circuit Court to be holden at Armidale on the 10th day of April now next ensuing or at such other time and place as the Honourable the Attorney General may appoint.

[Signed] J Mackmanus, PM, and Abraham Nivison, JP.

~ ~ ~ ~ ~

(O, 1, 11 & 12 Vic., Cap. 42.)

Recognizance to give Evidence

New South Wales,
TO WIT.                 }

Be it remembered, that on the 23rd day February in the year of Our Lord one thousand eight hundred and seventy four Charles Abbott a senior Constable of the Police Force, Joseph Wagner, Samuel Brazil, John Shaw and Edward Hampson in the said Colony, personally came before the undersigned one of Her Majesty’s Justices of the Peace for the Colony of New South Wales, and acknowledge themselves to owe our Sovereign Lady the Queen the sum of forty pounds each, of good and lawful money of Great Britain, to be made and levied on their goods and chattels, lands and tenements, to the use of our said Lady the Queen, her Heirs and Successors, if they said before mentioned persons shall fail in the conditions endorsed. Taken and acknowledged, the day and year first abovementioned, at Walcha in the said Colony, before me.

[Signed] J Mackmanus, PM.

The condition of the within written recognizance is such, that whereas Emi Captain was this day charged before James Buchanan, Abraham Nivison and Christopher Dawson Fernwick Esquires, three of Her Majesty’s Justices of the Peace for the said Colony, with sodomy. If therefore, they the before mentioned person shall appear at the next Circuit Court to be holden at Armidale, in and for the Colony of New South Wales, on Friday the 10th day of April next, at nine of the clock in the forenoon, and then and there give such evidence as they know, upon an information to be then and there preferred against the said Emi Captain for the offence aforesaid, to the Jurors who shall pass upon the trial of the said Emi Captain, then the said recognizance to be void, or else to stand in full force and virtue.

[Signed] J Mackmanus, JP. PM.

~ ~ ~ ~ ~

[On the deposition’s cover sheet is the following]

23rd February 1874
No. 197 No. 2
Depositions.
Regina v. Emi Captain (chinese)
Sodomy
CC Armidale 10 April
Sodomy
6.3.74 [initialled] J[oseph] G[eorge] LI[ong-Innes] AG
Tried for sodomy on 4th (April ?) & acquitted 
[Initialled] F[rancis] E[dward] R[ogers, Crown Prosecutor, Northern District]
11/4/74
Tried for attempt to commit sodomy. Verdict – guilty 
Sentence 2 years hard labor  Maitland Gaol 
[Initialled] F[rancis] E[dward] R[ogers, Crown Prosecutor, Northern District]
13/4/74
Walcha

~ ~ ~ ~ ~

Prosecuting Counsel is referred to Reg v. Reardon 4 F & F 76 last (?) of Archb p. 201.

[Initialled] JGLI [Joseph George Long-Innes, Attorney General]

~ ~ ~ ~ ~

Justice JF Hargrave’s Notebook 2

46

[1st Trial – 11 April 1874]

Queen v Emi Captain 3

Sodomy

On 4th January/1874
At Brango Plains      }

    1.  Senior Constable [Charles] Abbott, Senior Constable at Walcha arrested prisoner 10th February – read warrant – attempt to commit it. He (said ?) “G[erman] boy bloody liar – steal my matches.”

    2.  Joseph Wagner. 16 year old 29th March, lived at Mr Fletcher’s station, remembers Sunday night – slept in a hut in one room with Jack Shaw & prisoner in a room other side – described the rooms – went to bed about 9 o’clock – undressed myself, went to bed. Captain came into bed & held me so that I could not move – “put his thing into my backside” – you hurt me – He said no fear you – rogue I’ll kill you – I tried to get away & could not. He stayed about five minutes or so. The dog barked & he cleared out & went to his own bed – JS [John Shaw] slept in my bed. Came to (bed ?) (& ?) Jack

47

don’t remember Captain saying anything to me. He said there had been a boy there before & he good boy not talk – I made no complaint that night. I was ashamed. Told my father 4 or 5 weeks after.

    Cross-examined. Fancy it was dark – can’t say whether in bed or not – did not speak to him before bed – in backside – not complain – 5 or 6 weeks there – 3 miles off – never any quarrel with prisoner – not took his matches – never – prisoner stayed there till arrested – never took prisoner’s top coat nor poisoned his dog – poison in (bed ?). Not send a kangaroo dog after any of prisoner’s sheep & killed – complain the first time I saw father but after a while. When able to tell him – not drink –

  3.  Senior Constable [Charles] Abbott recalled. Explained plan of the building to Jury.

Witnesses 4

    (a)  Samuel Brasil. Prisoner did not complain of boy – before arrest – all friendly till arrested – then matches. Said German boy’s father took his tarpaulin before arrest – not top coat.

    Cross-examined. J(H ?). 12 months there – not drink. 5

No other witnesses for defence

Jury retired at eleven o’clock, returned at half past eleven.

Verdict (Not Guilty) 

~ ~ ~ ~ ~

Justice JF Hargrave’s Notebook 6

63

[2nd Trial – 11 April 1874]

Queen v Emi Captain

 

On 2nd January/74      attempt at sodomy
At Brango Plain }  on Joseph Wagner

    1.  Senior Constable C Abbott (?) arrested prisoner on 10th February, read the warrant. Said “German boy – bloody liar,” stole my matches.

    2.  Joseph Wagner Brango Plains Station (Sam ?) & Brazier – remembers night of Friday 2nd January. Went to bed that night. Jack Shaw had gone out to see about the horses, not in room when I went to bed – prisoner in another room – Captain came to my bed & began to play nasty tricks – He went into my bed. In front. I gave a rush & got hold – He tried to put his thing in my backside. I ran to the door & went to the kitchen in my shirt – all in bed there – Jack Shaw & Ned Haupt came up then. I went to meet him. Jack S said “come out of that” – I went away & slept with Ned Haupt 9 or 10 o’clock went back for my boots. Captain said “Very sorry”. 

64

Captain talks to me in English – Captain denied it next day. I asserted it again/said nothing.

    Cross-examined. Did not ask Captain to come to my bed (16 years old).

    3.  Samuel Brazle 7 Remembers Friday night in January – when (Joseph ?) came to my house – complained to me between 9 & 10 at night.

    Cross-examined. Never told me about matches – but about an old tarpaulin – next day he denied it.

    4.  John Shaw. Employed at Brango Plains Station, knows prisoner & Joseph Wagner. In January remembers night when (?). Saw Joseph Wagner coming down the road in his shirt. He complained. Found prisoner in my bed – after a while he got out. Joseph Wagner did not sleep in my hut that night but with Ned Hampson. 8 Never saw chinaman in my bed till that night.

    Cross-examined. I saw him in the bed & ordered him out.

    5.  Edward Hampson.  Employed on Brango Plains Station. Met Joseph Wagner in his shirt only – he made a complaint to Jack Shaw. He slept with me in the big house that night. He complained to me that night.

Verdict Guilty 

2 years imprisonment hard labour in MG [Maitland Gaol].

~ ~ ~ ~ ~

The Sydney Morning Herald, Tue 14 Apr 1874 9

LATEST INTELLIGENCE.
———◦———
REUTERS TELEGRAMS
TO AUSTRALIAN ASSOCIATED PRESS.
———◦———
ARMIDALE.

Monday.

    At the Circuit Court, to-day, Thomas Webster, indicted on the charge of stealing cedar, was released on his recognizance. John Allen, indicted on the charge of stealing a saddle, was found not guilty. Emi Caplain [sic], for attempting to commit an unnatural crime, was sentenced to two years’ imprisonment in Maitland gaol with hard labour. The criminal business is concluded, and the Civil business has been proceeding since noon.

~ ~ ~ ~ ~

The Armidale Chronicle, Thu 16 Apr 1874 10

ARMIDALE CIRCUIT COURT.
FRIDAY, APRIL 10.

BEFORE HIS HONOR JUDGE HARGRAVE.

    The Bar was represented by Mr Rogers, Crown Prosecutor, and Mr MH Stephen. Mr WH Forster [son of RHM Foster, formerly of Armidale] acted for the Crown Solicitor. The Judge’s Associate being Mr Macarthur. The usual proclamation against vice and immorality been read, and the jurymen having answered to their names almost without exception.

SATURDAY [11 APRIL 1874]

    The Court resumed at a few minutes past 9 o’clock.

UNNATURAL OFFENCE

    Ah Me Captain – a rather plain chinaman, his face in repose was like one of those hideous carved idols you sometimes see in museums, and when excited like the least good looking ape in a large menagerie – was charged with an unnatural offence upon Joseph Wagner. Prisoner was undefended, and the Judge, having asked him whether he had any money, was informed £4 or £5, but it was away at his hut; under those circumstances, his Honor said he would do his best to act for him. The evidence was of course unfit for publication, and resulted in a verdict of not guilty; but the prisoner was removed in custody, there being another charge against him.

~ ~ ~ ~ ~

The Armidale Express and New England General Advertiser, Fri 17 Apr 1874 11

ARMIDALE CIRCUIT COURT.

The Court re-opened on Saturday [11 April 1874], at 9 am.

UNNATURAL CRIME.

    Emi Captain, a chinese, was indicted for having on the 4th of January last, at Branga [sic–Brango] Plain, committed a name less offence.

    Prisoner professed not to understand English, but Mr Caldwell (the gaoler) said he understood it very well.

    Prisoner pleaded not guilty,  and was undefended.

    His Honor asked him had he any money?

    Prisoner said he had – £4 or £5.

    His Honor told him he should give all the money he had to some lawyer to defend him.

    Prisoner said the £5 he had left in his hut.

    His Honor said he would do all he could to protect him, by putting questions when he considered them necessary. Would prisoner be satisfied with that?

    Prisoner replied yes.

All boys were ordered out of the Court.

    The Crown Prosecutor stated the case, evidence was taken, and prisoner said nothing in his defence. From cross-examination by him, however it was evident that his defence really was that he had had reason to complain of the conduct of prosecutor (a boy) and that he had made this charge against him out of revenge.

His Honor, in summing up, was, upon the whole, favourable to prisoner. He said it was a good point for him that he had not absconded when the charge was first made. There was also another thing also in his favour – that the initiation of the prosecution had been delayed for an unreasonable time – four or five weeks – although prosecutor had the opportunity of putting the law promptly in motion. It was for the Jury to consider carefully whether the reason he had stated for this would be accepted by them as sufficient. He explained the law as it affected such cases.

    The Jury, after half an hour’s absence, returned a verdict of not guilty.

    There being another charge against the accused he was retained in custody.

~ ~ ~ ~ ~

The Armidale Express and New England General Advertiser, Fri 17 Apr 1874 12

ATTEMPTING AN UNNATURAL CRIME.

    Emi Captain, a chinese, was indicted for having, on the 2nd January last, at Branga Plain [sic] Brango Plains, attempted to commit an unnatural crime.

    Prisoner (through an interpreter) pleaded not guilty,  and was undefended.

All boys and women were commanded to leave the Court during the hearing of the case.

    The CP stated the case for the Crown very briefly, but pointed out that there was in it a great difference from the preceding one against the prisoner in the fact that the prosecutor had, immediately after the time of the alleged offence, complained of prisoner’s conduct.

    Evidence having been taken,

His Honor summed up, evidently in an unfavourable manner for the prisoner.

    The Jury, without leaving the box, found prisoner guilty.

    His Honor said that prisoner had been found guilty on most conclusive evidence. He could only give imprisonment  by the law as it stood, but he was convinced that such crimes as this one could not be stopped until flogging was added, by a change of the law. He sentenced prisoner to two years at Maitland gaol, with hard labour. 

    In discharging the Jurymen, his Honor thanked them for their attention.

    The criminal business was ended at 11 am. There was then an adjournment for half an hour, preparatory to commencing the civil business.

~ ~ ~ ~ ~

Ami Captain, Gaol photo sheet 13 

SRNSW: NRS2326, [2/2106], Maitland Gaol photographic description book, 1873-1922, No. 25, p. 27, R5127.


 Gaol Photo Sheet - Transcribed Details

No. 25
No. on Gaol Register: 1213/74

Portrait taken: 19th November 1875

Name: Emi [aks Ami] Captain

Native place: China

Year of birth: 1836

Arrived        Ship: Not Known
in Colony }   Year: ditto

Trade or occupation
previous to conviction  } Tailor

Religion: C of England

Education, degree of: Nil

Colour of hair: Black

Colour of eyes: Black

Height: 5' 2"

Weight     On committal: 
in lbs     }  On discharge:  

Marks or Special Features: Right eye gone

Where and when tried: Armidale Circuit Court

Offence: Attempting to commit Sodomy

Sentence: 2 years labor

Remarks: Sentence remitted 12 Decemeber 1875

 

 (Previous Number ... ) 

PRISON HISTORY

Where and When Offence. Sentence

 

 

 

 

Nothing known

 

   


1   SRNSW: NRS880, [9/6575] , Supreme Court, Papers and depositions, Armidale, Apr 1873. 

2   SRNSW: NRS6034, [2/4496] , Judiciary, JF Hargrave, J. Notebooks Circuit Courts, 1865-81, pp. 46-7. Emphasis added.

3   Mn: Rogers wished to state previous attempts which I refused to receive – as not within (the ?) case of Reg v Read. 4F & F 76

4   Mn: Archb 346 (?)

5   Mn: His countryman the interpreter here – assisted him

6   SRNSW: NRS6034, [2/4496] , Judiciary, JF Hargrave, J. Notebooks Circuit Courts, 1865-81, pp. 63-4. Emphasis added.

7   Variant spellings in both documents, my rendition faithful to the text as written.

8   Variant spellings in both documents, my rendition faithful to the text as written.

9   The Sydney Morning Herald,  Tue 14 Apr 1874, p. 7. Emphasis added.

10 The Armidale Chronicle,  Thu 16 Apr 1874, p. 2.

11 The Armidale Express and New England General Advertiser,  Fri 17 Apr 1874, p. 6.

12 The Armidale Express and New England General Advertiser,  Fri 17 Apr 1874, p. 4.

13 SRNSW: NRS2326, [2/2106] , Maitland Gaol photographic description book, 1873-1922, No. 25, p. 27, R5127.