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1899, John Charles Smith - Unfit For Publication
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The Carcoar Chronicle, Fri 4 Aug 1899 1

TRUNKEY.
(From Our Own Correspondent.)


    At the Police Court on August 1st before Messrs TA Smith, PM, and McPhee, Parsons and McKenzie, J’sP, John Charles Smith, a stranger to the district, about 30 years of age, was charged with soliciting Thomas Atkins (or Parks) a boy of 13 years of age, to commit a felony. Sent Constable Ferris prosecuted, and gave evidence of the arrest of the accused, near Newbridge, within a short time of receiving information of the alleged offence.

    Thomas Atkins deposed: On the night of July 26th, he accompanied a cousin a few years younger than himself, on a message just after 8 o’clock. While going along the main Newbridge road they were accosted by accused who had been knocking about the village for several days before, and he expressed the intention of accompanying them, at the same time trying to induce the younger boy to continue the journey alone, which he said he was afraid to do. Arriving at their destination, Atkins continued, his cousin entered the house to attend to the business on which he had been sent, he remaining outside with accused who asked him to show him the way to Thompson’s, near at hand. He consented, and on the way accused requested him to go to another place, saying he had a conveyance and wanted to get a parcel from it. They altered their course, and soon after accused stopped and caught hold of him, at the same time making an improper proposal and offering a present of a silver pencil-holder and money. He refused, and got away. Accused, he alleged, caught up to him again near a house, when he (Atkins) went towards it. Accused asked him why he was doing so, and he replied that he wanted to tell Mr Thompson, who lived lived [sic] there, about some fillies. Accused said, ‘don’t be long.’ He then went to the house, and Smith walked along the road.

    Mr Thompson deposed: Atkins was very frightened, and looked pulled about when he reached his house, and after hearing his complaint he told him to walk along the road and he followed him at a short distance. The man, lurking in some bushed, was soon reached, and on Atkins crying out, ‘Here he is’ he decamped before Mr Thompson could reach the spot. This was said to have occurred at half past 8, and both boys were positive of the identity of the accused.

    Evidence called by Smith, in defence, showed that he had certainly played a game of billiards at Gunness’s hotel from half-past 8 to 9, which he won.

    The Bench were unanimously agreed that a prima facie case had been mad out, and committed the accused to stand trial at the Circuit Court at Bathurst on Oct 12th, intimating that if bail was asked for it must necessarily be substantial.

    Smith was further charged by Senior-Constable Ferris with personating a policeman at the Public School on July 25.

    From the evidence of the teacher, Mr O’Dea, and a girl of 13 years of age, a pupil , it appeared that the accused was seen in some bushes outside the school ground at dismissal on July 24, and that on the 25th, at dinner hour, he went on to the play-ground and engaged in conversation with the teacher, stating he was arranging some business in regard to land with one of the residents, and that as the deeds were in the girl’s name he wished to see her regarding them. The story seeming true, the teacher gave him permission to interview the girl, but said he would see her later on, and went away. An hour or so afterwards he returned, and at his request the girl was allowed out to see him, remaining a short while. From what she told the teacher, on returning into the school, and other complaints that had been made to him, Mr O’Dea communicated with the police. The child’s evidence was to the effect that on going out the accused told her he wanted her to sign a paper, at the same time telling her he was a constable having authority to order her to do so. She refused, and after some further importuning, which was also resisted, she returned into the school and told the teacher what the man had requested her to do, and what he had represented himself to be.

    Accused gave evidence on his own behalf, denying the charge, saying that he only asked the girl for an address.

    The Bench unanimously arrived at the conclusion that Smith had acted as alleged, and the maximum penalty of a fine of £10, or, in default, two months’ imprisonment in Bathurst gaol, the PM remarking that the design in view was evident.

    The fine was not paid.

    The PM severely censured Smith for his actions, which were recounted in Trunkey for the few days he had been in the place. People were afraid to send their children to school or elsewhere, in consequence of his attitude towards them.

~ ~ ~ ~ ~

Depositions for John Charles Smith 14 Oct 1899 Bathurst trial 2

 


(a) Town.


Letter from Bench of Magistrates at (a) Trunkey

 

transmitting Depositions

(b) Name in full of accused.

in the case Regina v. (b) John Charles Smith

(c) Offence.

(c) Soliciting one Thomas Atkins Jnr to commit a felony

 

(d) Town.

Police Office, (d) Trunkey

 

August 1st 1899 

 

Sir,

 

I have the honor, by direction of the Bench of Magistrates,

 

to transmit herewith the Depositions, and other documents in the

(e) Name of accused

case of (e) John Charles Smith

(f) “His” or “her”

who has been committed to take (f) his

(g) “Circuit Court,” or 
“Quarter Sessions.”

trial at the (g) Circuit Court

to be held at (h) Bathurst

on Thursday

(h) Town where Court 
to be held.

the 12th of October 1899

The accused is (i) confined in gaol at Bathurst

(i) “Is confined in the 
Gaol at …,” or “has been admitted to bail” (with full particulars as to sureties, addresses, occupations, and amounts, as set out in Recognizance.)

(k) As in Recognizance, both for Crown and defence, specifying also what witnesses gave evidence but were not bound over, with reason for omission.

The Witnesses bound over are (k) HE Ferris, Thomas Atkins, Horace Atkins, John Atkins, Robert Thompson, JT Gunness for the defence
Basil Hearn Birchill and Frederick Rineke.

 

(l) Short description to enable identification.

The Exhibits enclosed are (l) Nil

 

I have the honor to be,
Sir,
Your obedient Servant,

 

 

 

[Signed] RC Smith

 

Clerk of Petty Sessions

The Secretary,

Attorney General's Department.

N.B.– When a Police Constable acts as Clerk of Petty Sessions, this letter should be signed by one of the Committing Magistrates

4g 201-90

 

~ ~ ~ ~ ~

NEW SOUTH WALES POLICE.

Trunkey Station,
2nd August 1899.

Western District,

Report relative to antecedents of:–
Name: John Charles Smith
Offence: Soliciting one Thomas Atkins to commit a felony to wit sodomy.
Committed for Trial at: Bathurst Circuit Court
Date: October 12th 1899

    Senior Constable Ferris No. 1915 reports:–
That the offender John Charles Smith was committed at the Trunkey Petty Sessions on the first day of August, charged with personating a member of the New South Wales Police Force to wit, a Constable, and fined £10, in default of payment, 2 months imprisonment in Bathurst Gaol (Fine not paid.)

    This offender is a Victorian native, and nothing of his past career is known to the Police here.

[Signed] Henry E Ferris, Senior Constable.

~ ~ ~ ~ ~

(M., 11 and 12 Vic., c. 42, s. 17.)

Depositions of Witnesses.

TO WIT.     }

The examination of HE Ferris, of Trunkey in the Colony of New South Wales, Senior Constable, taken on oath this 1st day of August, in the year of Our Lord one thousand eight hundred and ninety nine, at Trunkey in the Colony aforesaid, before the undersigned, one of Her Majesty’s Justices of the Peace for the said Colony, in the presence and hearing of John Charles Smith, who is charged this day before me, for that he the said John Charles Smith, on the 25th day of July, at Trunkey, in the said Colony, solicit one Thomas Atkins to commit a felony “to wit sodomy”.

1

    This deponent Henry Edgar Ferris on his oath saith as follows:– I am a Senior Constable and in charge of Trunkey Police Station. From something that came to my knowledge I went in search of the accused and found him in a paddock near Newbridge about 11.30 am yesterday. I told Thomas Atkins the charge. I arrested him on. I am not prepared to proceed with the case and ask for a remand for 7 days.

[Signed] Henry E Ferris, Senior Constable.

Taken and sworn before me at Trunkey the 28th day of July 1899.
[Signed] J Arkell Smith, JP.

    Remanded for 7 days.
[Signed] JA Smith, JP.

2

Charles John Smith on remand

    This deponent Henry Edgar Ferris on his oath saith as follows:–

I am a Senior Constable and reside at Trunkey where I am in charge. On 29th July, Thursday, I asked accused when I arrested him where he came from. He said Goulburn. I said you were at Gunness Hotel at Trunkey. He said “Yes.” I said “You are the man who was at the school Thursday putting money to be played for against their marbles.” I said “Where is the silver pencil you had at Trunkey?” (This was after I had reached him). He said “I threw it away near Newbridge.” On Friday morning I brought Thomas Atkins to the lock up

3

where he saw the accused. I said “Do you know that man.” He said “Yes.” I said “Is that the man you complained to me about?” He said “Yes.” I showed accused to Horace Atkins in the cell. He said he knew the accused. I said “Was that the man who was with you last Tuesday night?” He said “Yes.” The prisoner said he was not with them at all that night but was playing billiards with Dr Birchill and that the (?) would state the same.

    (Accused asked no questions but produced the pencil and handed it to Senior Constable Ferris)

[Signed] Henry E Ferris Senior Constable.

Taken and sworn before us at Trunkey this first day of August 1899.
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

4

    This deponent Thomas Atkins on his oath, saith as follows:–

I am a residing with my parents at Trunkey and am 13 years old. I don’t go to school. I hold my certificate from the Inspector. I know the accused. I have known him since last Tuesday night. I met him near Mrs Wright’s just about 8 o’clock as the moon was setting. My cousin Horace Atkins was with me. He met the accused. He was coming down the road and said “Good night Punch” – (that is Horace Atkins’ nick name). “Is that you?” Horace said “Yes Tom, that is me.” Accused said “Where are you going?” Horace said

5

“Up for the Doctor.” Accused said “Is any one sick?” Horace said “Yes, Mother is sick.” The accused said “Who is that with you?” Horace said “My cousin.” The accused asked me my name, I told him. He said “Was you born in Trunkey?” I said “Yes”. Accused said “If it was not so cold I would go with you to the Doctor’s,” that if he had his big coat he would go. Accused then said “I will go with you.” He said to me “What is the fire up the road?” I said “I don’t know” Horace said “It is a travellers camp.” Accused said “That’s all right, we will go on to the Doctor’s.” When we got near Mr McPhee the accused told Horace to run ahead. Horace said “No,

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I am frightened.” Accused said “What are you frightened of?” Horace said “I am not frightened of any thing.” Accused said “Why won’t you go ahead?” Horace said “Because I want to stop with Tommy.” Accused said “All right he will go with you.” When we got to the Doctor’s the accused told Horace to go and see the Doctor. While Horace was inside accused told me to show him the way to Mr Thompson’s house. Accused said “This is not the place. What is the place further on?” I said Mr Henrie’s.” Accused said “Come up here with me. I want to get some things out of a trap that was camped there. When we got to a place near where the

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trap was supposed to be near the top of the hill, accused said “The trap has not come yet.” When we got near the top of the hill accused made this remark. He said said “Sit down here and listen.” Accused sat down first, I then sat down. He asked me to if ever I was fucked. I said “No! and I am not going to be.” He caught hold of my hand and told me to come with him just off the road. He asked me if I would give him a “fuck”. I said “No!” He pulled out a silver pen and told me that it was worth 26/6. He said he would give it to me if I would let him suck me and that he would also leave half a crown for me with young Gunners. He said

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the fuck would only take a few minutes. I said “No!” He caught hold of me by the shoulder and turned me with my back towards him and went to unbutton one of my trousers buttons. I pushed his hand off and got away. I got on to the road and ran. Accused ran after me and did not catch me until I was in front of Mr Henrie’s house. He caught me by the hand and wanted me to go back with him. I refused to go. He said “Come along the road with me.” I said “All right.” When in front of Mr Thompson’s I told accused that I had to see Mr Thompson about some fillies. Accused said “You need not see him.” I said “I must.” He then said

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“I’ll wait for you down here.” I said “You need not bother.” I went into Thompson’s and told him something. I went ahead, Mr Thompson followed me down the road. When about 200 yards from Thompson’s I saw accused in the moonlight behind a clump of bushes off the road. He said to me “Here you are.” I called out “Here he is.” Mr Thompson and I started going back to Mr Thompson’s, who was walking quickly and when accused saw him he (accused) started running away from me towards Trunkey Village. Mr Thompson ran after him but did not catch him. I did not see him again till he was in the cell last Friday morning. When he showed

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me the pencil I said “Strike a match that I may see it.” He did so and I distinctly saw the face of accused. I could not be mistaken. Accused is the same man.

    The pencil case now shown me by the Police is not the one he offered me when he said he wanted me to let him fuck me.

    Bench: Accused was sober. I saw Horace again that night at my father’s place. I told my father something. I told HE Ferris something when he spoke to me about this case.

    By Accused: I never saw you before that night that I can remember.

[Signed] Thomas Atkins.

Taken and sworn before us at Trunkey this 1st day of August 1899.
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

11

    This Deponent Horace Atkins on his oath saith as follows:–

I am 11 years old and live and reside at Trunkey with my Parents. Patrick Atkins is my Father. I know the accused. I have known him since last Wednesday he was at the Public School that day. On Tuesday I was not at school, but that night I went with my Cousin Thomas Atkins to Dr (Jenning’s ?) place. I and Tom met accused that evening just above Mrs Wright’s place. We all then went together to (Jennings ?) place. Accused when he met Accused he called me Punch. I am called by that name. I am sure the accused is the man that we met and

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who went with us to (Jenning’s ?) place. I went into the house, I was there 10 minutes. When I came out Tom and the man had gone. I called out and some one whistled. I saw Tom about an hour and a half later. It was about ½ past 8 o’clock we went to (Jenning’s ?) place. I saw accused at the School Monday and not on Wednesday. He was then sober, He had some drink taken when I saw him in the evening.

    I saw Accused at the School on Monday. He was talking to Mr O’Dea the teacher. I did not see him on Wednesday.
Accused asks no questions

[Signed] Horace Atkins.

Taken and sworn before me at Trunkey this 1st day of August/99
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

13

    This Deponent Robert Thompson on his oath, saith as follows:–

I am a maintenance man and reside at Trunkey. I don’t know the accused. I remember last Tuesday night. I know Tommy Atkins. He came to my home last Tuesday night about 8 or ½ past pm. He told me something. I went with him on to the road. I then sent him ahead. I heard Tom call out and run back towards me. I heard a man say “Come on, I won’t touch you.” I saw a man running away.

    By Accused: I was not in Trunkey that night.

[Signed] Robert Thompson.

Taken and sworn before us at Trunkey this 1st day of August 1899.
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

14

    This Deponent John Atkins on his oath, saith as follows:–

I am a Labourer and reside at Trunkey. Tom Atkins is my stepson. I remember last Tuesday night. He went with a message to (Jenning ?) the Doctors that night with Horace Atkins. Horace returned by himself. He told me something. Tom came back crying later on and appeared frightened. I heard Tom tell the Police something

[Signed] John Atkins.

Taken and sworn before us at Trunkey this first day of August 1899.
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

15

    This Deponent John Theodore Gunness on his oath, saith as follows:–

I am a Publican and reside at Trunkey. I know the accused who put up at my house on the 24th July and the night of 25th July. Accused had a game of Billiard at my house at 9 o’clock last Tuesday night. Accused came in by the back way into the house that night to his bed about 11 o’clock. I don’t know where accused was between 9 o’clock and 11 o’clock that night. Accused and Dr Birchill played billiards that night.

    By Accused: You left about ½ past 9 o’clock and took your coat with you.

    Police: Accused told me he had lost

16

a load and was looking for it and that his mate had gone looking for the (horse ?). He said they lost the horse at Hobbys Mews and that the trap was theirs. I have no idea where accused was between his tea time and 9 o’clock. Accused said he was a Commercial Traveller selling Agricultural Implements.

[Signed] JT Gunness.

Taken and sworn before us at Trunkey this first day of August 1899.
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

17

For the Defence.

    This Deponent Basil Hearn Birchill on his oath, saith as follows:–

I am a Medical Practitioner and reside at Trunkey. I had tea at Gunness’s last Tuesday night. You had tea there also that night. This was between 6 and 6.30 pm. You and I had a game of billiards that night on Gunness’s table. That was about 9 o’clock that the game was over.

    Bench: The accused is a stranger to me. I saw him in the billiard room just before the game started sitting by the fire. I don’t know when he came in.

[Signed] BH Birchill.

Taken and sworn before us at Trunkey this first day of August 1899.
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

18

    This Deponent Frederick Rineke on his oath, saith as follows:–

I am a groom and reside at Gunness Hotel. I remember you being at Gunness Hotel last Tuesday n evening. After tea I saw you in the Billiard room. You stood by the fire. I heard you say you would play the Dr a game of billiards. This was about 8.30 pm. I can’t say where you were from when you had tea till about 8.30 pm. You left the Billiard room about 9.30 pm.

[Signed] Frederick Rineke.

Taken and sworn before us at Trunkey this 1st day of August 1899
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

19

G. 190.

REGINA.
versus
John Charles Smith

Offence,—
    The accused stands committed to take his trial at the next Court of Assize to be holden at Bathurst, on the twelfth day of October 1899. Bail allowed the accused in £100 and two sureties in £50 each, or one in £

[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP

JP.

Dated at Trunkey Police
Office, Trunkey
this first
day of August
AD 1899
4g 416 - 88

~ ~ ~ ~ ~

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

Statement of the Accused.

 

New South Wales, Trunkey
TO WIT.                                 }

John Charles Smith, 1899. SRNSW: NRS1998 [3/5961- ], Photo: SRNSW.
John Charles Smith, 1899. SRNSW:
NRS1998 [3/5961- ], Photo: SRNSW.

John Charles Smith stands charged before the undersigned, ----- of Her Majesty’s Justices of the Peace in and for the Colony aforesaid, this first day of August in the year of Our Lord one thousand eight hundred and ninety nine for that he, the said John Charles Smith on the twenty fifth day of July 1899 at Trunkey, in the said Colony, did solicit one Thomas Atkins Jr to commit a felony to wit “Sodomy” and the examinations 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 has nothing to hope from any promise of 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 trial, notwithstanding such promise or threat; and the said charge being read to the said John Charles Smith, and the witnesses for the prosecution Senior Constable HE Ferris, Thomas Atkins Jr, Horace Atkins, Robert Thompson, John Atkins and John Theodore Gunness being severally examined in his presence, the said John Charles Smith 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 John Charles Smith saith as follows:– “I will give my defence.”

Taken before me at Trunkey, in the said Colony, the day and year first above mentioned.
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP.

~ ~ ~ ~ ~

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

Warrant of Commitment for Trial.

To Henry Edgar Ferris Senior Constable in the Police Force for the Colony of New South Wales, and to all other Constables in said force, and to the Keeper of the Gaol at Trunkey in the said Colony,

Whereas John Charles Smith was this day charged before JOHN ATKINS Smith, JP, GJG Parsons, JP, JJ McPhee, JP, Alexander McKenzie, JP [four] of Her Majesty’s Justices of the Peace in and for the Colony of New South Wales, on the oath of Senior Constable Henry Edgar Ferris of Trunkey in the said Colony, and others, for that he did solicit one Thomas Atkins Junior to commit a felony, to wit, sodomy.

These are therefore to command you, the said Constable, or your assistants, to take the said John Charles Smith and him safely to convey to the Gaol at Bathurst aforesaid, and there to deliver him to the Keeper thereof, together with this precept; and do hereby command you, the said Keeper of the said Gaol, to receive the said John Charles Smith into your custody in the said Gaol, and there safely keep him until he shall be thence delivered by due course of law.

Given under our hands and seals this 1st day of August in the year of Our Lord one thousand eight hundred and ninety nine at Trunkey in the Colony aforesaid.

[Signed] JA Smith, JP, GJG Parsons, JP.

~ ~ ~ ~ ~

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

Recognizance to give Evidence. 3

New South Wales, Trunkey
TO WIT.                                 }

Be it remembered, that on the 1st day of August in the year of Our Lord one thousand eight hundred and ninety nine Henry Edgar Ferris a Senior Constable of the Police Force, Thomas Atkins, Horace Atkins, John Atkins of Trunkey in the Colony of New South Wales, John Theodore Gunness of Trunkey in the said Colony, [and for the defence] Basil Hearn Birchill of Trunkey in the said Colony, and Frederick Rineke of Trunkey 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 acknowledged 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 the said before mentioned persons shall fail in the Condition indorsed.

[Signed] Henry E Ferris, Thomas Atkins, Horace Atkins, John Atkins, JT Gunness, Robert Thompson, BH Birchill, Frederick Rineke.

Taken and acknowledged, the day and year first above mentioned, at Trunkey in the said Colony, before me.
[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP.

The Condition of the within written Recognizance is such, that whereas John Charles Smith was this day charged before JA Smith, GJG Parsons, JJ McPhee, Alexander McKenzie Esquires, four of Her Majesty’s Justices of the Peace for the said Colony, with soliciting one Thomas Atkins to commit a felony “to wit sodomy”.

If therefore, they the before mentioned persons shall appear at the next Court of Assizes to be holden at Bathurst in and for the Colony of New South Wales, on the 12th day of October 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 John Charles Smith for the offence aforesaid, to the jurors who shall pass upon the trial of the said John Charles Smith.
Then the said Recognizance to be void, or else to stand in full force and virtue.

[Signed] JA Smith, JP, GJG Parsons, JP, JJ McPhee, JP.

~ ~ ~ ~ ~

[On the depositions’ cover sheet is the following]

Circuit Court.
Bathurst
12th October 1899
AG’s No. 189
Depositions.
CS’s No. 2
Regina
v.
John Charles Smith
Soliciting a person to commit a felony
Committed at: Trunkey
on: 1st August 1899

~ ~ ~ ~ ~

July 25/99 at Trunkey
Assault with intent to commit sodomy
[Initialled] C[harles] G[regory] W[ade, Crown Prosecutor]
12/8/99
Approved
[Initialled] G[eorge] H[oustoun] R[eid QC] AG
15.8.99
An indictment (?) (?) prepared for soliciting to commit felony

~ ~ ~ ~ ~

Cor Cohen J
Bathurst CC
14.10.99
Verdict: guilty of assault with intent.
Sentence: 12 months HL Bathurst
[Initialled] EMS

~ ~ ~ ~ ~

Justice HE Cohen’s notebook  4

119

[Bathurst] 14 October 1899

R v Smith (John Charles) – Assault with intent to commit buggery with Atkins. (Sec. 60)
Plea Not Guilty

    Horace Atkins. 10 years & 10 months old – live in Trunkey. I know accused. I saw him in Trunkey at the public school. He was loitering about the school. He asked me to jump over the fence as he wanted me to go for a message for him. I said I had to go to school – I was not playing marbles then. He asked my name & I said “Punch” (a nickname). I asked him his name & he said Tommy. I saw him again about 2 days after. He was then coming down by (?) pub. I was going to Dr Jimmy the chinaman. He asked me was school out. I said no I hadn’t been at school. I went on. I saw him again that day after about 4.30 pm & the next day I saw him again about 8.30 pm. Moon up, just coming over hill. My cousin Tommy Atkins was with me – about 13 years old. We were going to Dr Jimmy’s. Accused was coming along the road. I said is that you Tommy. He said yes. He asked where I was going. My cousin Tommy said to the Doctor’s. Accused said who is sick. Accused said if it were not so cold I should go with you; as it is, I

120

will go now, I have to go down to hotel for my overcoat. Cousin Tommy said to accused come along we must get on, I want to get to Doctor. We went along & accused said there’s the moon now. Cousin Tommy said it was coming up when we came by Hunter’s. They went on talking till we got to turnoff to go to Doctor’s. Accused told me to run on. I said I was too frightened, I won’t go on, I want to stay with my cousin Tommy. if We all went on till we got just aside the Doctor’s house. Accused told me to go in with message. I went in, & came out again. Accused & cousin Tommy were not there. I was inside about 10 minutes. I sang out The accused was wearing a silvery looking ring this night, with a buckle or a heart stamped on – like the ring produced – it is the one.

    Tendered Exhibit “A”.

    Cross-examined. I don’t know what time I left home this last night. My home is about (½ ?) mile from where I 1st met the man that night. I was standing talking to the man about 5 minutes. You told me your (?) was Tom. I don’t remember the day – I told the Police Magistrate it was on a Wednesday. My cousin didn’t know you. It is about 1 mile from our place

121

to the Doctor’s. I didn’t see my brother cousin go away when I went in to Doctor’s. It was al something after 9 when I got home that night. When I was asked at the cells if you were the man I said “yes” – not “I think so”. I said I was sure at first. I afterwards told the Magistrate it was Monday I saw accused. I said you were talking to Mr O’Day 5 at school when I came (out ?), that was the day I saw you at the school. I wouldn’t swear I wasn’t at school on Tuesday – I wasn’t there Tuesday morning.

    Thomas Atkins. I live in Trunkey – 13 years & 3 months old. I know accused – saw him at Trunkey on Tuesday night July 25. My cousin Horace with me – he is called “Punch”. When we 1st saw accused he said good night Punch is that you. Punch said yes Tom that’s me. Accused said who is that with you. Punch said that’s my cousin Tommy. Accused said to Punch where are you going. Punch said to the Dr Jimmy’s. Accused said if it was not so cold I would go with you – it was pretty cold – if I had my big coat I will go with you. We 3 then went along the road & when we got near McPhee’s accused said to Horace run and be ahead. Horace said no I’m frightened. Accused said what are you frightened of. Horace said I am not frightened. Accused said why won’t you go ahead. Horace said because I want

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to stop with Tommy. We 3 went together. When we got to Doctor’s Horace went inside. Accused asked me if I would show him where Mr Thomson 6 lived. I said yes. When we got near Thomson’s accused said this is not the place, will you come up here with me, there’s a trap camp I want to get some things out of. I said all right & went with him. When we got there there was no trap & accused told me to sit down & wait for a few minutes. I sat down with him & (we ?) heard someone whistle. He told me to come off the road for a bit & he as I went. He asked me if ever I was fucked. I said no & I wasn’t going to be. He said I will give you this silver pen, or I will leave you ½ crown with young Guinness. 7 I said no. I said strike a match till I have a look at the pen. I l He struck it & I looked at the pen accused’s face & saw the silver pen in a silver holder. I said no. He said go on, you give me a fuck. I said no. He caught hold of me by the left shoulder & went to undo 1 of my trouser buttons – on the right side in front. I struggled away from him & ran down

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near Henry’s 8 opposite (Hanson’s ?). Accused ran after me & caught me – told me to come back again. I said no I won’t. He said come down along the road a bit with me. I said all right. When we got near Thomson’s I told him I had to tell Thomson about some fillies. He said never mind. When w I went inside [to] Thomson’s door. Before I went in accused said I’ll wait for you. I was insi about 2 yards from accused when I went to door. He went ahead. Thomson was outside. I said something to him. I went with Thomson on to the road. I went ahead of Thomson & when I got down the road a piece I saw accused behind a clump of bushes. he I cried out here he is Mr Thomson. Accused said come on I am not going to hurt you. Accused got on to road & started running. Thomson ran after him – T I ran with Thomson who saw me down the road a bit when I went home. I said something to my father when I went home. I note Accused had on silver ring, there was a bump of some sort on it.

    To me. The moon was just rising when I 1st met accused that night – it might be ½ past 7, perhaps a bit more.

    Cross-examined. My place about 150 yards from where I met the man. When I 1st met him I had a little

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conversation with him. I don’t remember seeing you before that night or having had prevor previous conversation with the man I met. It is about ½ to ¾ mile from my place to Doctor Jimmy’s. I went along the main road. When we got near to McPhee’s we turned off main road. It wasn’t very dark. I’ve I don’t know whether my cousin saw me go away with the man – I went over there about 10 paces of the Doctor’s with him & the man – I only stopped there about a minute. It is about 300 yards from Doctor’s to where the man attempted to assault me. It would be from my house about a mile to that place. I got home I don’t know what hour, about 8.30I told my father about this when I got home. I told the Magistrate I never told my father a lot of it. I didn’t say I never told anyone till the next day or the day after. I don’t remember saying at the police court I met you about ½ past 8 & it was then dark. I did not say at the police court as I remember that the man never touched a button – I didn’t say I he merely put his hand on my shoulder & turned me round. When I saw the man behind the bushes he was about

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5 paces from main road & some distance from me. I said The man looked like the man who accosted me, & spoke the same. I wouldn’t swear he was the same, but I think so. I don’t remember seeing you before in the day time.

    Robert Thompson. Maintenance man at Trunkey. On July 25 I saw Thomas Atkins in the night at my place. He complained to me. I went on to the road with him – along the road I saw man come up from (?) side of road on to the road. Atkins ran back to me & called out so that the man could hear, Here he is Mr Thompson. The man ran away towards Trunkey. Before he started to run he called to Atkins I am not going to “touch” you or “hurt” you – he then turned round & ran away. I followed the boy down & told (?) until he was safe in Trunkey. I couldn’t recognize the man – I think the moon must have been clouded. I saw the man about 50 or 60 yards away. By the watch I had at time – at which I looked – before the boy came to house – it was pas ½ past 8. Immediately after, within 5 minutes, the boy came to the door.

    Cross-examined. I can’t swear it was you. I didn’t notice the time when I came back. I must have

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walked ½ mile there & ½ mile back. It wasn’t 9 o’clock when I got back. I afterwards found out (nearly ?) to Trunkey time my watch was 10 minutes fast – perhaps the next day.

    John Atkins. On night of July 25 my son went out. I can’t say exactly what time – or when we he came back. When he came back he seemed (white ?) & frightened. He I asked him something & he in answer he made a complaint.

    Cross-examined. I think my son left home between 7.45 & 8.30 that night. he was I don’t think he was away more than ½ or ¾ hour – it may have been ½ past 8, ¼ to 9 or 9 when he came home. When he came home he seemed so frightened I asked what was the matter. He said a man had asked him to show the road to Thomson’s. When he did so he said that’s not the place – that there was a trap camp a bit further on that he wanted to get something out of. The trap wasn’t there & he asked him to come a bit further up the road & asked him to come off the road. He said he got frightened & ran away – went on & told Mr Thompson that there was a man on the road he was frightened of.

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I said did this man do anything to you. He said no. I said do you think he intended to. He said yes I (do ?). I didn’t ask him any more that night. I don’t remember telling the Magistrate that the boy made no statement that night – I said the boy never told me what had actually happened till the police came. I have seen where the assault is said to have taken place. It may be near about a mile from my place, not quite – the mile peg is near Thomson’s. The boy showed me the place just on right side of road, not on top of hill – (a way ?) up a little hill – it is further on from Thomps than the mile peg.

    To me. I My son had no business to see Thomson about when he left home, that I am aware of – he left with Horace to go to the Doctor’s.

    Henry Edward 9 FerrisSenior Constable Trunkey. I arrested accused at Newbridge 18 miles from Trunkey on Thursday July 27. I saw him sitting in a paddock – called him out. I said what’s your name. He said Smith. I said your Christian name. He said John Charles. I said where did you come from. He said Goulburn. I said you were the man staying at Guinness’s a day or 2 ago. He said yes. I said you are also the man at the public school putting on pennies (?) their marbles a day or 2 ago. He said yes. I said you were also out at (?)

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& interfered with 2 little girls. He said I didn’t. I charged him with assaulting &c. I brought him to lockup. On 28th I brought (?) To Thomas Atkins to cell, showed him accused & said do you know that man. He said yes. I brought Horace also. He said at once that’s the man with Horace & me on the 25th. Accused when arrested (?) a silver ring like that produced. I said to accused what did you do with a silver pen or pen holder you had. He said I threw it away. He said, near Newbridge. I said what for. He said it was no bloody good.

    Cross-examined. The paddock you were in was (cleared ?). You were on a plough – 2 other men there. I was in uniform. When you left Newbridge lockup you were not out of my sight till we got to Trunkey. I didn’t see you throw a pencil away or anyone give you a pencil. You produced the pencil produced at police court. You didn’t tell me “you had done it to me” in speaking about the pencil.

    Re-examined. From John Atkins’s to Doctor Jimmy’s is not a mile & the Doctor’s is 270 yards further away.

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Guinness’s is about 250 yards from Atkins’s.

    To accused. From Guinness’s to where assault is said to have taken place is nearer than a mile.

Crown case closed.

Defence

    John Charles Smith. About 6.15 I came home to Guiness’s hotel … was standing in billiard room at fire. Landlord said have you had tea. I said no … I had tea. Dr Burchel 10 & Guinness at tea also. After tea I got up about 6.45 & went into billiard room. Mick (Jones ?) there. I didn’t know his name at time. I stayed in there till about 7.30 or 45 when Guinness came into billiard room followed by Doctor. The lamps lit. Guinness left the room. I started practising billiards. About 8.15 Guinness came back. Doctor there too. After considerable time, 20 minutes or more, Doctor got a cue & we played a game of 50. When finished we went into bar & had a drink. While there, clock struck 9. I returned to billiard room, after 2nd drink with Guinness, & didn’t leave the billiard room till 10 to 10. I went into my bedroom, got my coat & things, came out, (settled ?) my bill & said I am going home. I live at about 9 miles away. I hadn’t gone far but I met Joseph Mitchell, when (Jones ?) & I act had

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conversation with him & went to where he was camped. We had 5 or 6 drinks each out of a bottle whisky he had. I went back to Guinness & stopped there that night – I got to Guinness’s about 11. He had just shut up. Next morning I went to where I was working & the following day to Newbridge, where I was arrested. I deny the boy’s story altogether.

    Cross-examined. I was at the school – I didn’t see Horace there that I remember. I didn’t ask him his name. I never spoke to him in my life. He is an absolute stranger to me. I hadn’t a trap on hill. I had pencil – none but the one produced by the constable. I had no silver pencil. I had a ring – I don’t think it was shown to Horace when he saw me in the cell – it was not. It is the ring “A”. The pencil I referred to when speaking to the court is the pencil in court – I had “done it in” at the time. A He spoke about a silver pencil – I gave the pencil to the constable at Police Court when he spoke about. The constable said give me the pencil you have. I didn’t throw silver pencil away near

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Newbridge & didn’t tell T 11 I did. The game of billiards took me ¾ hour. Doctor was sober – he had a drink or two – had a few. I think he could (count ?) all right. I never played billiards before with the Doctor. I often play – I once had a table of my own. I could never do better than 50 in ¾ hours. I We started to play about 8.15, that is when Guinness came back. I had no watch & there is no clock in billiard room. I was practising about 20 minutes. Doctor there while I was practising – which took me up till about 8 o’clock, the Doctor being still there. No lamps alight at 7.30. Guinness returned while I was still practising – about 7.50. I heard the bar clock strike 9. Guinness & the Doctor there then I am certain – in the bar.

    John Theobald Guinness. Publican Trunkey. You Accused had tea at my place on night of July 25. You were playing a game of billiards with Dr Burcher 12 when I came into billiard room. I don’t recollect coming into billiard room & saying what no billiards tonight, about 7.30. I don’t remember seeing you practise. I didn’t light a lamp. You were playing – finished your game just at 9 o’clock. I can’t recollect say I can’t say how long you were playing. You went out of the house after having game of billiards. I didn’t see you in the house after billiards till 11 o’clock. You paid me

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some money during the day before dark – £1 I think.

    Cross-examined. I didn’t see him after nine till 11. I knew the game finished at 9 because the Doctor made the remark it’s just striking 9 as they came into bar. Accused stayed at my house 2 nights. He played billiards the 1st day & evening – I found him playing with someone about 3 or 4 o’clock; he played all the 1st evening pretty well. He plays a fair game – he could run up 50 in about ¼ hour, having regard to his general play – I mean 50 to play the game out with another. I said at Police Court I had no idea where accused was between tea time & my seeing him play before 9.

    Re-examined. I can’t say when you paid me I think accused paid me the £1 after he had his tea.

    To (Jury ?). He had tea a bit after 6 between 6 & 7. I don’t know whether he went out after tea & before 9. He & the Doctor began to play at 8.40. That’s the 1st time I saw him since after tea.

    Basil Hearne Burcher. Medical Practitioner. I saw you in Trunkey. You were at tea with me at Guinness’s. I came into billiard room about

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7.30 or 45. I don’t remember Guinness saying play the Doctor a game. I don’t remember Guinness coming in & saying what, no billiards tonight. I don’t remember Guinness lighting the lamp. When I went into the room the lamps were lit & accused was practising alone. I played you a game. After we had the game we were in the bar when the bar clock struck 9 & probably began the game about 8.30. I don’t remember saying while you were practising, I’ll take 20 to 1 after that. I played, you won. I don’t remember Guinness (marking ?) the match. I don’t think he was in the room at the time.

    Cross-examined. I play a very poor game. That night I think we played a slow game. I never saw accused before. I don’t stay at Guinness’s. This was a Tuesday evening & I believe July 25. We may have started the game a bit after 8.30.

Defence closes

    To me. Accused left the tea table before I did – (?) (would ?) be I think about 7 or a little after. I didn’t see accused again till we had the game of billiards.

    To Stephen. We started playing almost straight away.

    To accused. You may have been practising a minute or 2 after I came in.

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    Horace Atkins recalled.

    To accused. I saw you with a ring on when you were at the school. You were outside the fence, had your hand on top of fence & I was just beside it. That was Monday. I told the Magistrate I identified you by seeing you strike a match on the road.

    To Stephen. I also saw accused by the light of the moon.

    Thompson recalled.

    To Jury. When the boy came to my place he stood at the door. When I saw the man behind the bush the boy may have been 15, 20 or possibly 30 yards ahead of me. Accused ran towards Trunkey – from where he started to run was about ¾ mile to Guinness’s. I walked very quietly 300 or 400 yards with the boy. At pace the man was going at when I saw him, he would do it to Guinness’s in 5 minutes – it’s all down hill from there.

    To accused. It was 8.30 by my watch before the boy came to door. I don’t think more than 2 minutes (before ?). I went down the road about 200 yards when I saw the man – it wouldn’t take me 5 minutes to get there. I sent the boy on quickly in front of me.

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    Accused to Jury.

    I sum up.

Jury  retire at 1.20 pm.
       return at 2.55  “

Verdict “Guilty

August/99 Trunkey Police Court. Impersonating a constable – fined £10 or 2 months.

12 months imprisonment in Bathurst Gaol with hard labour.

~ ~ ~ ~ ~

The Bathurst Daily Times, Sat 14 Oct 1899 13

CIRCUIT COURT.
Friday, October 13.
(Before Mr Justice Cohen.)
His Honor took his seat at 9.30 am.

    Mr Milner Stephen, instructed by Mr John Gonsalves (of the Crown Solicitor’s Office) prosecuted for the Crown.

Saturday, October 14.
His Honor took his seat at 9 am.

CHARGE OF ATTEMPTING TO COMMIT AN UNNATURAL OFFENCE.

    John Charles Smith, a man of about 30 years of age, was charged with assaulting a lad named Thomas Atkins at Trunkey on July 25, 1899, with intent to commit an offence.

    Accused pleaded not guilty. He was undefended.

    All women and persons under the age of 21 years were ordered to leave the court.

    Accused gave evidence on his own behalf, and denied that he was guilty of the offence.

~ ~ ~ ~ ~

The Bathurst Free Press and Mining Journal, Sat 14 Oct 1899 14

CIRCUIT COURT.
———◦———
Friday, October 13th.
————
(Before Mr Justice Cohen.)
————

    Mr W Kite acted as Deputy-Sheriff, Mr EM Stephen, Crown Prosecutor; Mr J Gonsalves represented the Crown Solicitor.
    The barristers in attendance were Messrs G Innes and Boyce.
    All the local attorneys were represented, and Mr WP Crick (Sydney) was also in attendance.
    Sub-Inspector Saunders, of Orange, was in charge of the police, and Mr Graham, Governor of the Gaol, represented the Prison Department.

Saturday, October 14th, 1899.
(His Honor took his seat on the Bench at 9 o’clock.)

A SERIOUS CHARGE.

    John Charles Smith was indicted for that he, on the 25th day of July, 1899, at Trunkey Creek, did assault a lad named Thomas Atkins with intent.
    Accused was undefended and pleaded not guilty.
    The evidence was totally unfit for publication.

~ ~ ~ ~ ~

The Bathurst Daily Times, Mon 16 Oct 1899 15

CIRCUIT COURT.
Saturday, October 14.
(Before Mr Justice Cohen.)
His Honor took his seat at 9 am.

CHARGE OF ATTEMPTING TO COMMIT AN UNNATURAL OFFENCE.

    John Charles Smith, a man of about 30 years of age, was charged with assaulting a lad named Thomas Atkins at Trunkey on July 25, 1899, with intent to commit an offence.
    Accused pleaded not guilty. He was undefended.
All woman and persons under the age of 21 years were ordered to leave the court.
    Accused’s defence was that he did not commit the assault, and that at the time he was not in the vicinity of the place where it was alleged to have taken place.
    The jury found the accused guilty. He was remanded for sentence.

SENTENCES.


    John Charles Smith, found guilty of assault with intent to commit an unnatural offence on a lad, was sentenced to 12 months’ imprisonment with hard labour.

~ ~ ~ ~ ~

The Bathurst Free Press and Mining Journal, Mon 16 Oct 1899 16

CIRCUIT COURT.
———◦———
Saturday, October 14th.
————
(Before Mr Justice Cohen.)
————

    Mr W Kite acted as Deputy-Sheriff, Mr EM Stephen, Crown Prosecutor; Mr J Gonsalves represented the Crown Solicitor.
    The barristers in attendance were Messrs G Innes and Boyce.
    All the local attorneys were represented, and Mr WP Crick (Sydney) was also in attendance.
    Sub-Inspector Saunders, of Orange, was in charge of the police, and Mr Graham, Governor of the Gaol, represented the Prison Department.

A SERIOUS CHARGE.

    John Charles Smith was indicted for that he, on the 25th day of July, 1899, at Trunkey Creek, did assault a lad named Thomas Atkins with intent.
    Accused was undefended and pleaded not guilty.
    The jury, after a long retirement, returned into court with a verdict of Guilty.
    The police reported that accused had been fined £10 for personating a constable.
    Accused was remanded, and on being brought up at a later hour was sentenced to 12 months’ hard labor in Bathurst Gaol.

~ ~ ~ ~ ~


John Charles Smith, Gaol photo sheet 17

SRNSW: NRS1998, [3/5961], Bathurst Gaol photographic description book, 1874-1930, No. 1310, p. 4, R5086.


Gaol Photo Sheet - 
Transcribed Details

No. 1310

Date when Portrait was taken: 6-3-1900

Name: John Charles Smith
(aka Charles McGrath)

Native place: Victoria

Year of birth: 1865

Arrived       Ship: BC
in Colony }   Year:

Trade or occupation
previous to conviction      } Laborer

Religion: Roman Catholic

Education, degree of: Read & Write

Height: 5' 5¼"

Weight     On committal: 137
in lbs     } On discharge:

Colour of hair: Brown

Colour of eyes: Brown


Marks or special features: Scar on right side of neck, on elbow, on left forearm, right shin, right knee and on left knee

(No. of previous Portrait ... ) 

CONVICTIONS

Where and When Offence. Sentence

Hay PC

Trunkey PC

Bathurst CC

20

  1

14

10

  8

10

1892

1899

1899

Indecent language

Personate a constable

Assault with intent to commit sodomy

10/- or 3 days C

£10 or 2 months C

12 months H.L.

 Later convictions

 


1     The Carcoar Chronicle, (NSW), Fri 4 Aug 1899, p. 2. Emphasis added.

2     SRNSW: NRS880, [9/6980], Supreme Court, Papers and depositions, Bathurst, 1899, No. 189. Emphasis added.

3     Two Recognizance to give Evidence were included with this case. For ease of reading and to reduce space these have been combined into one.

4     SRNSW: NRS5788, [2/2714], Judiciary, HE Cohen, J. Notebooks Circuit Court, 1895-1910, pp. 119-35. Emphasis added.

5     Properly O’Dea, as in transcript of depositions.

6     Thompson, ibid.

7     Gunners, ibid. Could possibly be Gunness here, but definitely ss at the end.

8     Henrie’s, ibid.

9     Edgar, ibid.

10   Burchill, ibid., passim.

11   Tommy?

12   Burchill, ibid., passim.

13   The Bathurst Daily Times, Sat 14 Oct 1899, p. 2.

14   The Bathurst Free Press and Mining Journal, Sat 14 Oct 1899, p. 2.

15   The Bathurst Daily Times, Mon 16 Oct 1899, p. 2.

16   The Bathurst Free Press and Mining Journal, Mon 16 Oct 1899, p. 2.

17   SRNSW: NRS1998, [3/5961], Bathurst Gaol photographic description book, 1874-1930, No. 1310, p. 4, R5086.