The Age (43)
... part of the KellyGang story
The Age continued with its report of Ned Kelly's committal hearing in Beechworth
full text of article
Cross examined: I have been nineteen years in the force. When I went into the cell in the first instance it was with the ostensible purpose of giving Kelly a drink. Ryan was close to me when I gave Kelly the drink. Kelly was lying upon a bed: his wounds had been dressed by the doctor. It is usual for mounted police to carry revolvers even if they are in plain clothes. I have read the accounts of the Wombat affair. If I had been on the same business as M’Intyre I would have slept in my clothes with my revolver by my side. It is quite possible that had I been in M’Intyre’s place I would not have had my revolver on. I cannot give an opinion as to whether M’Intyre was to blame or not in failing to carry his revolver. In the thought that he was near the Kellys he ought to have had his revolver on him. I heard that Lonigan had the revolver on him when shot.
I arrived at Glenrowan about three o’clock in the morning. Superintendent Hare being in charge of the party. We heard the railway line had been torn up. The special train in which we were stopped at Benalla. I heard Bracken, “The Kellys are up at Jones’s, have the house surrounded, they are all inside.” I have read Mr Hare’s statement. I did not disagree with it as being incorrect. I did not hear Bracken mention anything to Mr Hare about the prisoner in the hotel. The first thing I saw was a volley fired at us from Jones’s verandah. It was moonlight. The station was about 70 yards from Jones’s. After Mr Hare was wounded I went to where Mr O’Connor was in a ditch. The fire was kept up for five minutes continuously. Screams were heard, and Mr Hare called out, “Cease firing.” and then he said to me, “For God’s sake, Kelly surround the house and prevent them escaping.”
The blacks were more active in their firing than the white men. They were told to stop several times, but they would not be stopped. I told them to stop, as also Gascoigne and two other constables. I did not hear O’Connor speak to them. The reinforcements did not the did not arrive until five o’clock , when Sergeant Steele’s party came from Wangaratta. Shortly afterwards a train came from Benalla and Wangaratta. By six o’clock in the morning the hotel was surrounded, and unless the police failed in their duty they were bound to see anyone coming out of the hotel. I fired into house at the back when I saw the shot coming from there. I had a Martini Henry carbine. Up to the taking of Ned Kelly I fired unto the house about ten shots. The prisoners inside were told to lie down.
Mr Gaunson: So you fired into the house where there were innocent people.
Mr Smyth said this line of cross examination ought to be limited. It had nothing to do with the charge of murdering Lonigan.
Mr Gaunson said he wished to show the conduct of the police. In Superintendent Sadleir’s report, Kelly was charged with murdering Martin Cherry. Such was not the case. It was the police who murdered him.
Mr Foster ruled that the evidence indicated had nothing to do with the present charge.
Witness: When Ned Kell was captured I did not pull out a large quantity of his beard. I did have hold of his beard, but I did not pull it. I saw Constable Dwyer kick the prisoner. I heard Constable Bracken say, taking up his gun, that he would shoot any one who touched the prisoner. I remained at Glenrowan until the house was set on fire. I saw the body of Byrne and the charred remains of what were supposed to be Dan Kelly and Stephen Hart. Senior-constable Johnson set the building on fire. I believe that was done by the order of Superintendent Sadleir. I could not say if Edward Kelly was under the influence of drink. Father Gibney was the first man to enter the burning building. I did not see him bring anybody out.
Mr Chomley objected to this line of evidence being introduced.
Mr Gaunson said that the Crown had called evidence not at all connected with the case, and with the object of influencing the public mind. For instance, they had called evidence with regard to Kelly putting his revolver in the face of a man at Euroa to show that he was a man capable of shooting Lonigan. Now, he wished to show what the police were capable of.
Mr Foster held that the evidence which Mr Gaunson had elicited was irrelevant.
Witness continued: There are no regulations to prevent my speaking to a prisoner in the cell of the lock-up. Kelly was very weak when I spoke to him. I have spoken to Constable M’Intyre with regard to the evidence I intended to give.
Mr Smyth said this closed the case for the Crown. He asked the bench to commit the prisoner for trail at the sitting of the next Beechworth Assize Court .
Mr Foster said he considered there was a prima facie case against the prisoner.
Mr Gaunson announced that the prisoner would say nothing except through his counsel in the Supreme Court.
The prisoner was then formally committed to take his trial at the next Beechworth Assize Court , to be held on the 14 th October next.
The same prisoner was then charged with having wilfully murdered Michael Scanlan, on the Wombat Ranges , on the 28 th October, 1878 . Constable M’Intyre was called and examined by Mr Chomley, to whom he repeated the evidence given by him on the previous day. He had not completed when the court was adjourned until tomorrow, to which time the prisoner was remanded.
BEECHWORTH 11.37pm .
At the close of the trial to day, when Mr Foster asked prisoner the formal question, if he had anything to say, it was evident from the expression of his face he intended to speak. Mr Gaunson at once urged that he should say nothing, and prisoner restrained himself, simply saying to his adviser “If he wants me to say anything I’ll very soon speak.”
A rumor has been circulated to-night that Denis McAuliffe had found the Kelly plant of money, and had made off with it, followed by disappointed friends, Mrs Skillian and Tom Lloyd. The rumor, however, is not true. This afternoon Kelly expressed the desire that his sisters should be in court to-morrow, and Dick Hart was sent to bring them up by the morning train. His sudden departure by train caused additional weight to be given to the rumor. When the night train arrived at the station it was found that in a second-class carriage the door on the opposite side from the platform was open, the window curtains were drawn, and the light in the carriage was darkened. Underneath the seat was a billy-can such as is generally used for boiling tea in the bush. The guard states that when approaching the station he heard some one jump out of the carriage.
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