THE MURDER AT' DIAMOND CREEK.

West Coast Times, Issue 344, 30 October 1866, Page 1 (Supplement)

THE MURDER AT' DIAMOND CREEK.

COMMITTAL OF BURKE FOR WILFUL

MURDER.

(FKOM THE MELBOUEXE " ARGUS," OCTOBER 16.)

The adjourned enquiry into the circumstances attending the death of the late Mr H. F. Hurst was held yesterday at the Diamond Reef Hotel, Diamond Creek, by Mr Candler, the district coroner. Burke, who was not in a condition to be removed s on the previous occasion, was now in attendance, having been brought from the Melbourne Gaol by an escort of police early in the morning, The jury having assembled, The Coroner read over the depositions taken at the previous enquiry, in order that Burke might have an opportunity of cross-examining the, witnesses. Robert Hurst, the deceased's father, was again sworn, and identified Burke as the man referred to by him in his previous evidence. The prisoner declined to put any questions to this witness. Ellen Hurst also identified Burke as the man who fired at her brother. / Prisoner — When I came to the door and asked you for some breakfast, your answer was, "With the greatest pleasure." Was it not ? Witness — I don't know whether I said "With the greatest pleasure;" but I asked you to come in, and said I would give you some breakfast. Prisoner — When your brother entered the apartment, did he bid me good morning ? Witness — He did a few minutes afterwards. Prisoner — I should like to see you take your oath on that. Witness — My brother said " Good morning " when he came in with the gun. Prisoner— l wish to deny The Coroner interrupted the prisoner, and said that at this stage he could only put questions. Afterwards he would be at liberty to make any statement he pleased. Prisoner (to witness) — Will you explain the manner in which your brother spoke to me. Witness — I don't know that there was anything particular in his manner. Prisoner — In what position did you stand in the room when your brother entered ? What distance might it have been from me ? Witness — About three or four feet. Prisoner — Did you stand on the further side of your brother, or nearest to me? Witness — I stood on his right side. Prisoner — Could you tell me the time that elapsed from the time your brother asked me where I was going until I stood up and declared myself a bushranger ? Witness — Not three minutes. Prisoner — What time elapsed from the time when I said I would not take an insult until I declared myself a bushranger ? Witness — It all occurred within three minutes. Prisoner — What distance might the deceased have been from the door ? Witness — I would not swear to the distance. Prisoner — In order to get out of the room, had 'you not to pass me ? Witness — No. William Hammett, the shepherd boy, identified the prisoner. The Coroner having read over the boy's previous evidence, asked the prisoner if he wished to put any questions to him. Prisoner — In the first place, I have a strong objection to that boy's evidence being taken at all. The Coroner— In what way ? Prisoner — He is in the habit of telling lies. The Coroner — Well, his evideuce must be taken for what it is worth. Prisoner — I dare say there are .witnesses present who will be able to tell what the boy said he did with reference to me when I was lying on the ground. The Coroner — At presant you can only ask him questions. The Prisoner (to witness) — How is it that you have not given evidence to the.. Court of the tale you told about me — that when the deceased and I struggled together you caught me by the hair of the head ? - Witness — I did not say any such thing. Prisoner— Did you not say that you endeavoured to pull me backward to the ground, and that I presented a weapon at you, threatening to shoot you if you did not let me go ? Witness — I never said any such thing. Prisoner — Anyoue who was present can substantiate what I say. The Coroner- -You can call any witnesses you like afterwards. Have you any more questions to put now ? Prisoner — No. Joseph Abbott was next called, and had his depositions read over to him. Prisoner (to witness) — I should like to know the time that elapsed from tho time you saw me pass the stockj'ard until you heard the report of firearms? Witness — It is t impossible for me to «ay. It might have been ten minutes and it might have been less. Prisoner — You said that I pointed t pistol at you ? Witness —Yes. Prisoner. — And that I threatened to shoot you if you would not let me go ? Witness — Yes. Prisoner — Did you knock the weapon irtit of my hand ? Ye*.

Prisoner.— Well, I have no more

questions to ask. William Ronald, J.P., surgeon, identified Burke as the man who was present when the dying deposition of the deceased was taken.

Dr Barker, who had been partially examined on the last occasion, now gave the following additional evidence : I made a post mortem examination of the deceased on the Tth instant, in the presence of Dr Ronald and two constables. The deceased was a muscularmade man, and f rom oft. lOin. to sft. llin. in height. There was a slight abrasion over the right temple. There was another abrasion over the right scapular, being in length, from above downwards, four inches, and half an inch in width ; and a third, about an inch long, on the lower part of the abdomen, about midway between the anterior superior spinous process of the illium and the pubic bone. There was a fuither abrasion on the upper and outer part of the right thigh, about two and a half inches long. There were three gunshot wounds — one about six inches from the umbilicus, or naval : the direction of the wound being towards the head of the right thigh bone. The second wound was about eight inches from the naval, on the same side as the other, and five inches from it. On passing a probe through the first wound it made its exit at the second ; these two wounds were therefore continuous. There was a third gunshot wound just above the crest of the ilium, or haunch bone. This I ascertained entered the cavity of the abdomen. On removing the scalp I found some extravasated blood between it and the skull, on the vertex of the head. There was also some extravasated blood behind the right ear. On removing the skull-cap I found the membranes of the brain slightly congested, The substance of the brain itself was quite healthy. I then examined the chest, and found that there were pleuritic adhesions on the left side. The lungs themselves were quite healthy, as well as the heart. The abdominal organs were quite health)-, with the exception of injuries which I will describe. The stomach was healthy, and contained a little semi-fluid food, without any peculiar odour. The content§ of the intestines were quite natural. On turning over the intestines I observed that there was extravasated blood in the cellular tissue of the ascending colon or large intestiue, and also a little in the last part of the adjoining small intestine. There was also extravasation of blood in the cellular tissue of the inner part of the belly, on the right side. On moving the intestines from their place, I found a pint or more of blood fluid in .the cavity of the pelvis. I found that the bullet which caused the third gunshot wound passed into the abdomen and through the mesentery, or covering of the intestines, near the junction of the large with the small intestines ; it then passed through the bladder, and then through the obdurator foramen of the left side. I then traced it for about four inches down on the inside of the left thigh, where the ball struck against the bone, and denuded it of portion of its covering. At this point I lost trace of the bullet. The body was so decomposed here that it allowed the probe to go between the muscles instead of following the course of the ball. The two first gunshot wounds had not passed through the abdomen, but only through the external muscles. The cause of ""death was the gunshot wound which entered the abdomen. In my opinion the two first mentioned wounds were produced by one bullet, passing from below upwards. The wounds must have been produced by a small bullet. (The prisoner's revolver was handed to witness.) A ball fitting a revolver like that would be about the size. The abrasions on the shoulder and on the lower part of the abdomen and thigh were caused by a bullet like that produced (a bullet fitting the prisoner's revolver). The abrasion on the back of the shoulder was just in a line with the gunshot wound of the right haunch, and may have ben produced by the same bullet which entered the abdomen. The abrasion about midway between the point of the ilium and the pubic bone was in a line with the wound through the external muscles of the abdomen, and may have been caused by the same ball. The abrasion on the outer and upper part of the thigh was also caused by a bullet. I believe this was caused by the same bullet which entered the abdomen, for on bending the thigh the two wounds could be brought in a line. Nothing could have saved the deceased's life aftfr the injuries I have described. There were no marks of powder about the wounds, of the abdomen, but the deceased's clothes would have prevented the powder blackening the skin. I think the deceased must have been standing up when he received the wound on "the . shoulder, and most likely he was struggling on the ground when he received the bullet in the abdomen. It seems almost impossible that the wound in Burke' s» leg can have been caused by either of the bullets which entered the body of the deceased. The wound was produced by a bullet and not by small shot. There were no marks ot shot on the deceased's thigh, nor did he complain of shot wounds in any part of his body. The bullet that caused the fatal wound is still in the body of the deceased. Mr Ronald was re-examined, and stated that he assisted Dr. Barker in making the post-mortem examination. He agreed generally with Dr Barker as to his conclusions with reference to the wounds on deceased body ; but he could scarcely see how the abrasion on the shoulder and the wound on the right haunch could have been produced by

the same bullet, unless the men were in a very peculiar position. The ball in deceased's leg could not have been discovered by any ordinary moans. Every legitimate effort was ' made, but the flesh was so soft that the bullet could not have been found except by cutting up tho body piecemeal, or by boiling it down. In witness' opinion, the cause of death was the wound in the abdomen. He agreed with Dr. Barker's evidence as to the appearance of the wounds. He examined the body of the prisoner on the 4th inst., and found no marks of small shot. Edward Hall, police-constable, stationed at Queenstown, deposed — On the morning of Thursday, the 4th October, about a quarter past nine o'clock, while travelling between Eltliam and Queenstown, a person informed me that a bushranger had shot the deceased. I returned to the Eltham police-station, which was about the eighth of a mile distant, and in company with Mountedconstable Mills at once proceeded to Mr Hurst's station. When I got there the prisoner was pointed out to me lying on the ground, with his hands and feet tied. I asked him what his name was, and who he was. He told me that his name was Robert Burke, and that he was Burke, the bushranger from New South Wales. I then told him that he was to consider himself my prisoner, for shooting with intent to kill Henry Facey Hurst. I cautioned him in the usual way, and then searched him. On his person I found fifty revolver bullets, and a box containing about ninety revolver caps. I also found a map of the colony of Victoria, and a road-guide, giving a list of the squatters and squatters 1 stations in the colony, and a pock6t compass. There was also a leather pocket-book, containing two cheques and a deposit-receipt on a New South Wales bank, amounting in all to L 156 6s. There was also in the pocketbook a circular of the Pension Frangaise, No. 202, Lonsdale street, Melbourne, and three advertising cards of the same establishment. There were fouuel besides on his person two photographs — one of G. V. Brooke ; and a letter, dated June 19, 1866, and addressed to "My dear Bob ;" and a French grammar. In one of his pockets were four saddle straps. Within a few yards of where the prisoner was lying I was shown two revolvers. I asked the prisoner if they belonged to him. He said. " Yes." I asked him where he got them ; and he said that the one marked A he took from Mr Manton, when he stuck up the coach between Jugiong and Gundagai, about a month ago. He said that he bought the other in a pawn shop in Stephen street, Melbourne. Subsequently he said it was he who stuck up the Copper Mines Company, in New South Wales. I then went into the house to see Mr Hurst. Thinking he was dying, I brought in the prisoner, and asked the deceased if he knew him. He said that he did. I asked him who he was ; and he said, " That's the man that shot me this morning," I was pointed out the kitchen by Miss Hurst, and I examined it. I found the marks of shot in the slabs near the entrance to the kitchen, about four feet from the ground, from which I extracted the shot now produced. The area over which the shot had spread was about eight inches in breadth, and from the appearance of the shots in the wood they seemed to have come from the fireplace. The shots had penetrated the wood to the depth of about the sixteenth part of an inch. I measured the room, and found it to be 1 3ft 2in by 10ft 3iu. The distance from the table to the fireplace is 6ft Tin. I measured the distance from the place where Miss Hurst stood to the place where the prisoner was at breakfast, and found it to be 6ft. Tin.., and three feet from where her brother stood. When I arrested the prisoner I loosened the rope, and found that he had been wounded in the thigh. There was a good deal of blood on the ground. I cut the trousers and put a baudage round the wound. There was a great quantity of blood about the kitchen and about the hall. Mr Abbott gave me the gun produced (a double-barrelled weapon). I found thrt the right barrell had been recently discharged, but there was a charge, I believe, in the other barrel. There was no cap on either nipple of the guv. The revolver marked A has six chambers. When I picked it up from the ground it seem n d as if three of them had been recently discharged. There was a cap in another chamber, but no charge ; and there was one chamber loaded, with a cap on the nipple. The bullets produced fit the barrel of the loaded revolver. The other revolver had two caps ; but none of the* chambers were loaded. There was a little blood on the loaded revolver, and a little grass between the ramrod and barrel of the other, as if it had been thrown down on the ground. The distance between the door of the house and the stockyard is 599 feet. After I had cautioned the prisoner. I said it was a bad job for him, and asked him why had he shot the deceased. He said, '• Because -he insulted me ; and I will allow no one to insult me." Subsequently told him that the deceased was dead, and he said he was sorry. I asked him why he came to the station, and be said he wanted a horse. Prisoner (to witness) — What were your reasons for asking me so many questions about my previous career in New South Wales ? Witness — Because you told me 3*oll were a person I did' not believe you were. My only object was to find out who you were. I told you not to criminate yourself; but I asked you to tell about any one who might be with you, as I believed there were others in th? district in partnership with you,

Emily Hurst, daughter of Robert Hurst and sister of the deceased, deposed—l was at homo on the morning of the 4th inst., but I left the house immediately after breakfast. When I returned, in about a quarter of an hour, the prisoner Burke was sitting on a stool in the kitchen. I said, " Good morning," but I did not hear him make any answer. My sister was in the kitchen at this time. Shortly after this my sister pointed out to me that Burke had pistols under his coat. I went to tell my brother, and he was then in the act of loading his gun. I told him I would go and fetch Mr Abbott. I went down to Mr Abbott, and while speaking to him I heard the reports. Mr Abbott at once dropped a bucket he had in his hand, and ran up towards the house.

Christian Ericsen, a farm laborer employed by Mr Hurst, deposed that he and a fellow laborer named Nelson met prisoner as they were going to thenwork on the morning of the 4th. When they had gone about a quarter of a mile they heard the report of firearms. They ran towards the house, and found the prisoner lying on the ground bound, as described by previous witnesses.

George Hammett, brother of a previous witness, and employed on Mr Hurst's station, deposed that just after breakfast on the 4th instant, he saw the prisoner pass into the house. About ten minutes afterwards he heard the report of firearms.

This was the whole of the evidence.

The Coroner (to the prisoner)— ls there any statement you wish to make ? If you wish to make any statement you are at liberty to do so, of course ; but you must understand distinctly that any statement you make may be taken down and used against you in evidence on some future occasion.

Prisoner— ln the first place, I wish it to be understood that I went to that place with no evil intention— none but to satisfy my appetite. Throughout life civility has been an attribute of mine. I am civil to everybody alike if civility, be shown to me. I came to the residence of Mr Hurst, and requested some some breakfast, as I was very hungry. I was answered very civilly by Miss Hurst that she would give me some. After I had been there some time the deceased came in, and the last female witness, Miss Emily Hurst, drew his attention to the poncho that was outside, and a shower of rain coming on at that time, he ordered it to be thrown inside. On his second entrance into the room where T was at breakfast, he never bid me " good morning," but asked me abruptly where I came from. My reply at once was Cape Schanck, and my destination Kilmore. He stood by the fireplace at this time, and he answered me as near as I can recollect, " Don't tell me such a tale. What brings you here?" I took it as an insult to be disbelieved in my statement, and I turned round from the table, and asked him if he was the master of the house. He answered that he was. I then informed him that my purpose there that morning was to get some breakfast, and that I did not come there to be insulted. " There is nobody here will insult you," he replied. '• You have just done so," I remarked ; " you have insulted me, and I can take my part with any man in the country." I accompanied that sentence by bringing my hand down upon the form upon which I sat. I then got up, and asked him if he knew who I was and what I was. I said, throwing ray coat back, that I was a bushranger. At the same moment, and with the view of sticking him up, I placed my hand behind my back on my revolver. Miss Hurst endeavored to pacify us, saying, " Let the man get his breakfast.'" The gun that was alongside he snatched up, and fired at me as quick as possible while I yet had my hand behind me. I had the weapon drawn out, when he dropped the gun and rushed at me. Miss Hurst says that the time which elapsed from when the deceased insulted me until I said I was a bushranger was three minutes, but the questions that were put and answered could not possibly have occupied three minutes. I did I not take notice of Miss Hurst goingout of the room, but I firmly believe that she was present, and saw her deceased brother fire the first shot at me. In like manner the boy Hammett must have seen the shot. When the encounter took- place between the deceased and myself, he had his arms thrown round me. I cannot recollect accurately the different features of the .struggle, but I can recollect that the deceased .got his hand on the muzzle of the weapon which I had in my own hand, and endeavored to wrench it from me. I succeeded at length in freeing his hand from me. The weapon -was cocked at the time, and I discharged the contents at him. There * was a deadly struggle. Knowing as I did by instinct that if he once came into possession of the revolver which I held, he would shoot me, I struggled for my own life. Before the second shot was-fired, we both rolled on the ground, and I endeavored to get the weapon behind his back. I remember saying to him at this time, w Let us quit now, and all will go well." He stuck to me the harder. On my getting the weapon behind his back I fired at him. The moment I fired I felt the ball enter my left thigh. " You have done for me," he exclaimed. He caught hold of my sleeve with his teeth, and endeavored to tear away my coat, I don't remember making use of any such expression as "You are a game ." I know that I spoke to him frequently, but what I said I cannot well recollect, except what I have already stated. He called . out frequently for assistancp, Abbott then entered, and «qi«§d

me also. I did not say to Abbott " I will shoot you if you don't let me go," but I said, ■• I have two charges in my weapon, and if 3011 will let me go 1 will not fire." I was weak from loss of blood, iind found myself fainting. He (Abbott) succeeded in throwing me outside the door, and I then became senseless. I related to him as well as I could the struggle which took place, and when the father of the deceased came to me, as I was bound on the ground, and asked why I shot his son, I told him that I had been insulted, and that I also fought in self-defence, knowing that if the deceased had got the weapon" in his hand, I might lose my life. Christian then came up and asked me what I had shot the deceased for" I told him that I fought but in selfdefence. He shook his fist in my face several times, and threatened me in a most brutal manner. Miss Hurst came up when he was in the act of striking me, and told him that he ought never to strike a man when he was down.

The Coroner — I don't think you need go into these particulars. They have nothing to do with the matters connected with the death of the deceased, which is what we have to concern ourselves with to-day. Prisoner — Very well. I have simply to say, with a clear conscience, that nothing induced me to go to that place but to get my breakfast. - I had no design on the station, and I did not know there was such a place until I came there. I remember distinctly answering Constable Hall that the 'reason I shot Hurst was that I fought in selfdefence. It is necessary for me also to state that Hall came to me on three occasions when there was nobody near, and questioned me as to my previous career in New South Wales. '

The Coroner — We need not go into that now. Any matters relating to the death of the deceased you may refer to. Prisoner — Well, I believe I have stated nil that I wished to state. I have stated it with candour, and I cannot do more. I don't care what the consequences may be, I am ready to meet them like a man, knowing that I fought in self-defence, and had no design upon the deceased's life.

The Coroner then proceeded to sum up, remarking that there was sufficient evidence to show that the deceased had died from the effects of a gunshot gound, inflicted by the prisoner. It would then be their duty "to determine whether it was a case of justifiable homicide, manslaughter, or murder. Murder was defined by the law as the taking of life by malice aforethought, either express or implied. Express malice could be easily understood, but there was implied malice, which was supposed to exist when a man took life while pursuing an unlawful action ; whether his taking of the life was intentional or not. It was also a maxim of the law that if a man declared himself to be what must be regarded as an enemy to all mankind, and did any act which might lead to to violence or blodshed, he was guilty of murder should he deprive any one of life in any struggle which took place. With reference to the question of selfdefence, the juryj ury would have to determine whether the insult spoken of by Burke was sufficient to justify him in drawiug his revolver, and declaring himself to be a bushranger. To him it certainly appeared that there was nothing in the insult complained of to warrant such conduct. If the jury thought that Burke was actually in fear of his own life, and that to save it he took the steps which he did, then it would be a case of manslaughter, but if they thought there was evidence to show that Burke had announced that he was a bushranger, and presented a loaded weapon at the deceased before the deceased fired , and if they thought from tile evidence that Burke was pursuing an unlnwful action, or one that might tend to bloodshed, or that he was in arms against the Queen's peace, then there would be a verdict of wilful murder, even although Burke might not have intended to kill the deceased

The jury, after twenty minutes deliberation, returned a verdict of " Wilful Murder" against the prisoner. The foreman said that the jury wished to add a rider to their verdict, to the effect that the colony was deeply indebted to the late Mr Hurst and to MiAbbott, for their courageous conduct in the matter. The Coroner intimated, however, that he could not receive any rider to the verdict. The prisoner was then committed to take his trial at the next Supreme Court Criminal Sessions on the charge of wilful murder.

Commander Maury. — It is seated that Commander Maury, of the United States, is about to be attached to the French navy as chief of the meteorological department.

Rinderpest ix the Hr\iA.t; Species and its Cure. — There is a story going in North Staffordshire that a farmer in the direction of Leek, who had lost some cows, was fully pursuaded that he had himself been attacked by "epidemic. Forthwith he consulted his own medical man, who tried to laugh him out oi the notion, but to no purpose. The farmer then went off to an old well-known practitioner, who being a bit of a wag, and seeing how matters were, entered minutely into the details of the case, expressing his concurrence with the patient's views, and' told him he could cure him. He then wrote a prescription, and sealed it up, and told the farmer to go to a certain druggist in the next Pottery town. The farmer lost no time in going with the prescription , but was somewhat startled when the druggist showed him the formula, which ran thus: "This man has got the cattle plague; take him into the back yard and shoot him according to Act of Parliament." There is no" need of saying that this was a " Perfect pure,"— "Mpcckijfleld CoiirwiV 1

ESCAPE OF KELLY'S BROTHER FROM THE STOCKADE, AUCKLAND.