The Sun.
London, England, 1862-03-29 00:00:00

ASSIZE INTELLIGEA CE.

HOME CIRCUIT.—LEWES, March 28.
CROWN COURT.
(Before Lord Chief Justice Erle.)
EXTRAORDINARY CHARGE OF MURDER. ,
John Cleary, 20, a good-looking young man, a
private in the 59th Regiment, was charged upon an
indictment, and also upon the coroner's inquisition,
with the wilful murder of James Ouden.
Mr. Roupell and Mr. A. L. Smith conducted the
prosecution. Mr. Barrow defended the prisoner.
The case, from the extraordinary circumstances
connected with the commission of the alleged of-
fence, created a great deal of interest.
The learned counsel for the prosecution, in his
opening to the jury of the facts upon which he re-
lied to support the prosecution, said the charge
against the prisoner had created so much sensation
in the county that it was impossible but they must
have heard or read a great many circumstances con-
nected with the alleged crime; but he entreated
them to dismiss all they had so heard or read from
their minds, and be guided to a decision solely by
the sworn testimony that would be laid before them.
He then proceeded to give a narrative of the facts
of the case. It appeared that the prisoner, as above
stated, was a private soldier in the 59th Foot, which
at the time of the occurrence was stationed in the
barracks of Chichester, and occupied one of the huts
or rooms in the barracks with 10 or 11 other men.
The deceased was a young man, a pupil at Bishop
Otter's College, at Chichester, which is dedicated to
the purpose of training schoolmasters, and he and
the prisoner, it appeared, were entire strangers to
each other. No motive could be assigned for the
commission of such an act by the prisoner, so far as
the unfortunate deceased was concerned ; but
the suggestion on the part of the prosecution ap••
feelingpeered of revenge w
tobethatthteapraisrda oneonerof th
entertainede
a officersdea ofdly
his regiment, who had ordered him to be put upon
extra drill, and that this was the person whom
he intended to destroy, and that he had killed the
deceased by mistake. The only question in the
case therefore was whether the prisoner's was the
hand by whom the deceased met his death, and the
evidence to support this suggestion was entirely
circumstantial. The occurrence took place on the
night of the 16th October, about 12 o'clock ; and it
pa pr
ipa en anreerd thata
noenn
Toe
bp
er enthvl
ei
ao
nu si
negv ehni in g,
his rifle,
t helsth, the
which
was
numbered 383, and he then placed it in the rack
over his bed, in the hut which he and his comrades
occupied. He then went out into the town of Chi-
chester, and returned to barracks about 9 o'clock,
and was then informed that he was ordered for extra
inspection drill on the following
.morning. He ap-
.
' it,pe aarre,di
fa,
he reyd
iand,ghrya atw a tahl ids ,
darni
Id].
tsha in dm h,
ore
rwould na
no tg r
yd o
expression to that effect, and he also said that he
should complain to the commanding officer. The
prisoner then complained of being bad in his inside,
and went to lie down on the bed with his clothes on.
The lights in the room were put out at a quarter to
10 o'clock, and in a few minutes after this the pri-
soner said he wished to retire for a natural purpose 1
and left the room, and it appeared that he made his
escape from the barracks. He was missed shortly
afterwards, and upon his bed and rifle rack being
examined, it was discovered that his rifle was gone,
and that ten rounds of ball cartridges and several
percussion caps were missing, and it also appeared
that when the prisoner left the barracks he had on
his regimental greatcoat and an ordinary civilian's
cap. About two hours after the prisoner had left
the barracks, under the circumstances above nar-
rated, the report of a rifle was heard in the neigh-
bourhood. The prisoner remained absent from his
duty, and no information was obtained as to what
had become of him. On the following night, the
16th October, two constables, belonging to the Chi-
chester police, were on duty at a place called Love-
lane, which is near the college, when they heard the
report of a rifle, which was followed by a shriek.
They proceeded to the spot, and there they found
deceased lying on the ground near a stile. He had
evidently been shot while on his way to the col-
lege, and the wound was stated by Dr. Drake,
a surgeon practising at Chichester, to be such an
one as would be caused by a conical rifle bullet,
which had passed completely through the body of
the unfortunate young man, entering a little below
the breast bone, and passing out on the right-hand
side of the spine. When the constables came up to
him the deceased complained that he felt as if he
was dying of cold, and he was carried to the college,
where he died about two hours afterwards, but
before he died he made a statement, which, however,
by the rules of evidence was excluded from the
consideration of the jury, to the effect that he had
been shot by a soldier. It would seem that imme-
diately after the occurrence the prisoner was sus-
pected to be the author of the crime, and a guard of
soldiers and other persons scoured the country in
search of him. No trace of him could, however, be
discovered at this time, but in a water meadow not
very far from Chichester a rifle was found by Mr.
Everett, the superintendent of police at Chichester,
concealed under some bushes, and this rifle turned
out to be the one that belonged to the prisoner, and
when it was examined it was discovered that the
weapon had been recently discharged, and that it
had been reloaded with the same description of
ammunition and bullet which had been supplied to
the prisoner for the performance of his regimental
duty. The evidence then went to show that on the
evening of the 16th, and at different periods on the
following days, a man wearing a cap and a soldier's
greatcoat, and having with him a rifle, and in fact
answering in every particular the appearance of the
prisoner, though none of the witnesses would under-
take to speak positively to him, was seen at diffe-
rent places in the neighbourhOod of Chichester, and
one of the witnesses also proved that on the night
of Oct. 15, as he was returning to that city at 12
o'clock at night, he saw the same man discharge
the rifle, but hew as unable to say what object he
aimed at. Nothing was heard of the prisoner until
the 18th of October, when a constablo named Par-
nell, who was on his way to Petworth in a cart in
search of him, accompanied by another officer, met
him on the high road leading to that place. The
officer stopped his cart, and the moment he did
so the prisoner jumped over the hedge, but the offi •
ccrs pursued him, and found him concealed under a
hedge, and took him into custody. They asked him
his name, and he stated truly that it was John
Cleary, and that he belonged to the 59th Regiment,
and he was then informed that he had been appre-
hended on a charge of wilful murder of a young
gentleman, a student at Bishop Otter's College.
Upon hearing this the prisoner said, " You have
taken the wrong man. I left Chichester two days
ago, and I am liable to be treated as a deserter.
How could I murder anyone when I had nothing to
do it with ?" The officers replied, " With that rifle
you took out of barracks with you." The prisoner
then said, " I took no rifle," and he inquired how
they knew that a rifle had been taken out of the
barracks, and the officer told him that one had been
found hidden in a ditch. The prisoner, in answer
to this, said, " Well, it is not mine." The prisoner
was then conveyed to Chichester, and while he was
in the charge of a constable named Clarke, he en-
tered into conversation with this person, and said
that he left the barracks at Chichester about 10
o'clock on Tuesday night, and that he had walked
about the fields on the following day picking black-
berries, and that at night he got some hay and lay
down in a wood. He then talked about the officers
of his regiment, and said that Major Bush, who
was one of them, was a very goodiofficer, and he
supposed he was the person who sent him a reli-
gious book that had been supplied to him. It also
appeared that when the prisoner was about to be
removed to Petworth gaol, after he had been com-
mitted for trial upon the charge of murder, ho said
to one of the persons about him, " Good-bye, I shall
never sec you any more. I know what they will do
with me, I expect they will hang me." These were
the principal points that were relied upon to sup-
port the charge against the prisoner, and they were
proved by a great many witnesses. The learned
counsel for the prisoner put several questions to
these witnesses in the form of cross-examination,
hut did not elicit anything that tended to affect the
character of the evidence they had given in their
examination in chief. It was elicited in the course
of the Cue that the prisoner was an Irishman, and
that he came from the neighbourhood of Nenagh,
and that he had stated that one of his relations was
murdered near the town of Nenagh some time
before. He also, it appeared, said that he applied
to
oe
l‘'hlisajobrrothr Bushe for a pass to enable him to go and
, and that he refused, and that Major
Bush would hang him if he could, and ho hoped
that when he went back he would have him
druinnied out of the regiment. The prisoner, it
appeared, also inquired whether the man was dead,
and when he was told that he was, lie asked who
be was, and when he was informed that he was one
of the students at the college
students, and
easntedr, ,t
hhaetstahi de
he did not know any ai. the

deceased was a stranger to him, One of the wit-
nesses, it also appeared, made an observation to the
risoner, to the effect tiL t the charge that was
made against him was a very awful al:, and
plied that it was, but added, "If there's a Goa I.
Heaven, and the witnesses do not speak falsely, I
can clear myself from it."
In the course of the case for the prosecution, Mr.
Roupeil proposed, as above stated, to put in evi-
dence the statement made by the deceased just
before his death.

Chief Justice Erlo said that he should only be
justified in receiving this statement upon evidence
being laid before him that at the time it was made
the party making it was under the apprehension of
immediate death.

Mr. Rougell said he was unable to prove more
than that the deceased requested to be taken home
at once, or he believed he should die of cold.
Chief Justice Erie said this was not sufficient,
and he should not be justified in admitting the
statement upon such a state of facts; and this evi-
dence was therefore rejected.
Mr. Barrow, at the close of the me for the pro-
secution, made an earnest appeal to the jury on
behalf of the prisoner, and he contended, in the
first instance, that there was no positive evi-
dence
it was
that a murder had been committed.
lie said was clear that the unfortunate deceased
young gentleman was an utter stranger to the pri•
seller, and he therefore could not have had any
motive for destroying his life, and that supposing
even that the jury should be of opinion that the
prisoner was the man who had caused his death,
there was nothing to show that the gun did not go
off accidentally. He then observed upon the want
of proof of the prisoner having his rifle with him
when he left the barracks on the night of the 15th
of October, and the weakness of the evidence as to
his being the man who was seen in the neighbour-
hood of Chichester and the other places on the
night when the offence was alleged to have been
committed, and he concluded by observing that on
such a charge as this, when the consequences of a
jury
would were of so fearful a character, the
would not be justified in returning a verdict of
guilty, unless on evidence of the most conclusive de-
scription, and such as could leave no possible doubt
of the guilt of the person accused.
Chief Justice Erie, in summing up, said he
thought that upon the evidence before the court
there could be no reasonable doubt that a murder
had been committed, and the only question for the
jury to consider was whether they were satisfied
that the prisoner was the person who committed
the crime. He then said that it appeared to him
that the police of Chichester had been very diligent
in bringing forward all the witnesses whose evi-
dence could throw any light upon the subject, but
they had to decide whether their testimony esta-
blished conclusively the guilt of the prisoner, and
if any doubt existed upon that point, he was en-
titled to the benefit of that doubt, and they ought
to acquit him.
The jury, after deliberating about a quarter of an
hour in the box, returned a verdict of not guilty.