THE TRIAL

OF JAMES O'BRIEN, FOR WILFUL MURDER.

COMMISSION COURT,

HELD before Lord Yelverton and Mr. Justice Day, came on the trial of James O'Brien, for the wilful murder of John Hoey.*

Mr. CURRAN, Counsel for the prosecution, stated the case. He observed, it was not the ordinary custom for the gentlemen of the bar, when prosecuting a man in a case that turned upon the question of life and death, to press many observations either on the court or the jury, in order to make any unfair lodgment on the minds of the jury, in order, if it was possible, to excite any anticipated sentiment unfavourable to the prisoner. He would be the more cautious in any observation he should make, because, on matter of fact, the pri soner had not the same privilege the prosecutor had; and because the wisdom and humanity of the law has established, that, with respect to a prisoner on the trial of his life, the evidence of criminality must be so plain and clear, as that no argument or evidence produced by the defendant could by possibility shake it; but the humanity of the law has also given to the prisoner a great advantage indeed, and that was the solemn and awful duty that was imposed upon

* We insert this trial merely to show the miserable fate of an informer. Most of these wretched men have disappeared, or are gone to foreign countries, wandering under borrowed names.

the judges, not to be his advocate, but certainly to be his counsel.

The prisoner at the bar stood indicted for the wilful and deliberate murder of a fellow creature, which, by the laws of all countries, and the ordinances of every nation, barbarous or civilized, has this positive and recorded principle, that, "whoever shall shed man's blood, by man shall his blood be shed." When God gave life to man, he imposed it as a duty on him to protect that life he intrusted him with, until it was the will of him that gave it to take it away; and society, when it instituted the severe law of capital punishment on the head of the deliberate and wilful murderer, did only carry the commands of God into effect, through the medium of the municipal law.

It would be necessary for the jury to carry in their minds, that though it is found necessary to remove the murderer from the earth, yet every man that lifted his hand against his fellow man, even though life should be terminated by theblow, is not called murderer by the law, nor does the law consider him as such; for, as the most enlightened and humane judge that ever wrote or thought upon the subject (Judge Foster) has declared, it might be attended with a depravity bent on mischief. To bring a man within the meaning of the law, it must be the cool and deliberate taking away the life of a fellow creature, attended by such circumstances as take away from the murderer all plea of self-defence-because the law does allow that sort of proof for a prisoner, and does lean towards the infirmity and frailty of human nature. The jury ought to recollect that the prisoner was but a man-they ought to recollect that themselves were but men-and the judges would recollect that they were but men, sitting in judgment on their fellow man.

Mr. Curran then said, it would not be necessary minutely to state the evidence intended to be produced, but merely so much as would enable the jury to understand the nature of

the case; it would, therefore, be necessary for him to depart from the general rule, and make a few observations.

The present trial was considered abroad as of some expectation. He very well knew, that whenever a judicial inquiry became the topic of public and general conversation, that every conversation was in itself a little trial of the fact. The voice of public fame, the falsest witness that ever was sworn or unsworn, is always ready to bear testimony to the prejudice of an individual; the mind becomes heated, and it can scarcely be expected, even in a jury-box, to find a cool, and reflecting, and uninterested mind. There are two tribunals to which every man must be amenable-the one a municipal tribunal, the other the great, and general, and despotic tribunal of public, reputation. If the jury had any reason to suppose that any man that came before them had been already tried by public fame, and condemned, he begged to remind the jury of the solemn duty that justice imposed on them, to turn their eyes away from the recollection that any sentence of that sort of condemnation had been pronounced by the voice of public reputation; and if they thought that his character had sunk under such a sentence, he would remind the jury, that the infamy of such a condemnation was enough, without their taking it into their consideration; it was the duty of the jury to leave the decrees of that court of public reputation to be executed by its own authority, for they had no right to pass sentence of condemnation on any man because that prejudging court might have passed sentence on his character; they ought to reflect, that the evidence given before that court was unsworn, that there was no deposition of any witnesses upon oath, and, therefore, they were bound to consider the evidence before them naked and simple, as if they had never heard the name of the man they were to try, and the sentence of condemnation that public fame had pronounced on his character. There was but one point of view in which public character ought to be taken, and that was, if there was doubt: in such a case, general good character

ought to have great weight, and go towards the acquittal of the accused; but, should it so happen, that general bad cha racter should be thrown into the scale, it ought not to have one twentieth part of the weight that good character should

have.

The jury, he was satisfied, would deliberately and cautiously weigh the evidence to be produced; and they would be perfectly satisfied in their minds of the guilt of the prisoner, and they must feel an irresistible and coercive force acting on them from the weight of the evidence, before, by their verdict, they pronounce that melancholy sentence thatwould remove a murderer from the face of the earth.

EVIDENCE AGAINST THE PRISONER.

Mrs. Anne Hoey swore that the deceased was her husbandthat previously to the unfortunate affair in question, he was in a very bad state of health, being confined to the house, taking medicines, and subject to a variety of complaints whereby he be came very weak; and the witness particularly deposed that he was rendered almost blind, and had been obliged, shortly before he was killed, to have five blisters on him, and an issue in his arm-that he walked on the evening above stated, to take the air, after which the witness never beheld him, until she saw him dead in Madam Stephen's hospital.. Surgeon Colles is resident surgeon at Stephen's hospital The deposed that the body of the deceased, having been taken on the evening aforesaid to his hospital, he did, on the following day, surgically examine it, in order to discover what were the wounds, and found that the man had received a stab with some two-edged weapon, in the left side-the wound went five inches into the body and penetrated the heart.

A. Downey was in the field on the evening of the 4th May, 1798-saw the deceased standing near the wall of the field, peaceably and quietly, detached from a great number

of persons playing at foot-ball and wrestling-heard a cry of, here is O'Brien_the_informer,* and, saw the prisoner and two invalids come over the wall; upon which the mob in the field immediately ran away-that as soon as the prisoner got into the field, he ran at the deceased and gave him a kick and a blow-that the deceased retreated sideways, and whilst retreating, the witness saw the prisoner take a dagger from under his coat, with which he stabbed the deceased, who instantly fell-that the prisoner immediately ran away a few paces, and then returned and raised the hand of the deceased, which, when he let go, fell to the ground; that he then examined the deceased's coat where the wound was, and immediately ran off-that the deceased did not in any manner assault or raise his hand against the prisoner; he might have said something to him without the witness hearing it, but he could not do any thing without the witness seeing it-the deceased was by no means one of the crowd that was playing, but seemed merely a spectator, and in a very sickly state of body.

Lawrence Beaghan corroborated minutely the examination of the witness Downey. He was cross-examined by Mr. Greene, and acknowledged that the crowd was very great, upwards of a thousand persons.

Exculpatory evidence was produced in favour of the prisoner, to show, that as the assembly of the people was supposed to be of á seditious nature, Alderman Manders and Major Sirr posted soldiers at the entrance of the field to arrest suspected persons, and that two were taken into custody. It was also endeavoured to be shown, that O'Brien was occasionally deranged-to corroborate which, two invalid soldiers were examined.

Mr. McNally, as counsel for the prosecution, recalled the witness Downey, in order to invalidate the evidence of the two invalid soldiers. The witness positively swore that the deceased, after he was assaulted by the prisoner, was in the act of retreating as fast as in all appearance he could, when

See Finney's Trial.