John Kelly’s trial for the murder of Michael Hourigan took place on Thursday, 20 May 1841, at the original Bathurst courthouse in Perth.1 The following is based on the account published in the Bathurst Courier (28 May 1841), which enlivened its recital of the facts of the case with bits and pieces of boilerplate didacticism (much like the tablid press of today).
A Fatal Affray
‘They finally made it up over some beer,…but got disputing warmly afterwards about a child.’
On Good Friday, 9 April 1841, John Kelly arrived at Henry Smith’s brewery “between 9 and 10 o’clock” in the morning, and “stopt some hours there.” His brother-in-law Michael Hourigan (spelled Horrogan in the newspaper account) came to Smith’s brewery at about 2 o’clock in the afternoon. While there initially appeared to be “some coolness between them,” the two men “finally made it up over some beer, at the suggestion of Horrogan.” However, the truce was short-lived; and Kelly and Hourigan “got disputing warmly afterwards about a child” (two-year old Ann Kelly, daughter of John Kelly and his wife Mary Hourigan and granddaughter and goddaughter of Mary [Lahey] Hourigan) in the presence of Henry Smith the brewer.
After leaving Smith’s brewery (whether together or separately is not clear), Kelly and Hourigan were seen together by two witnesses, John Brennan and William Headley, both residents of March township. William Headley was apparently the first of the two witnesses to see the two men together, when he and his wife came by in a sleigh. Having been shown “a stab on the side of [the deceased’s] head, inflicted by the prisoner,” Headley urged Michael Hourigan to get into his sleigh. Unfortunately, Hourigan refused, stating that “he would have satisfaction;” and Headley and his wife drove on.
When John Brennan saw the two men, Michael Hourigan was ahead of John Kelly, “who seemed to be in a violent rage, with a knife in his hand.” Brennan was “afraid of prisoner, and kept out of his way, advising deceased to do so also, and go with him,” but Hourigan refused, “stating he would go back and fight Kelly.” Brennan saw Kelly stab Hourigan and knock him down, before jumping on him and “inflicting some further blows.”
After a struggle, Brennan succeeded in “wrenching the knife from prisoner,” while Hourigan fainted away. Brennan then went to his neighbour Morgan’s house for assistance, and was followed by Kelly, who was driven away only when Brennan “went into the stable [presumably Morgan’s stable] and got a pitch-fork, threatening to stick prisoner if he would touch him.” Kelly “went off up the road, he had a stick in his hand.” When Brennan returned to the scene of the fight “about a quarter of an hour” later (and without neighbour Morgan, who was sick), he found Michael Hourigan lying dead.
At some point afterwards (it is not clear when, from the Courier‘s account of the trial), Dr. Hill, “a Surgeon in the township of March,” was called upon “to examine the wounds of the deceased.” Hill found four wounds, “the fatal one being a stab on the femoral vein, the others were but slight.” Hill testified that the deceased “could not have existed longer than 6 or 7 minutes after the fatal stab was given.”
To Have the Life of a Hourigan
As recorded by the Bathurst Courier, there are a couple of things worth noting about the testimony given at John Kelly’s trial.
‘…he would willingly forfeit his life to have the life of one of his family connexions.’
First, the Crown witnesses all offered damning testimony of past threats, and of threats overheard on the day of the fatal stabbing. John Brennan testified that Kelly had previously made “threats against the lives of some of his connexions.” On cross-examination, he clarified that “the prisoner, in his threats, did not mention deceased in particular, but the Horrogans [Hourigans].” William Headley “stated prisoner was a dangerous character, he took an axe to kill witnesse’s brother, some time before.” Henry Smith, the brewer, “heard prisoner say he would willingly forfeit his life to have the life of one of his family connexions.” And Dr. Hill, the surgeon, testified that he had “heard of some threats having been used unless they [i.e., John Kelly’s Hourigan-Lahey inlaws] would give up his child.”
Second, in his defense of Kelly, Daniel McMartin apparently took care to establish that the carrying of a knife was not in itself unusual, and therefore not a sign of criminal intent. Thus, when cross-examined by McMartin, John Brennan, who “had worked with prisoner,” admitted that “it was common to use case knives in shanties for eating with, similar to that produced, each man had his own knife.” Henry Smith also testified that “such knives as that produced, [were] commonly used by shanty men.” Presumably McMartin was concerned to convince the jury that Kelly did not seek out his brother-in-law with the intent to kill and with a murder weapon in hand, that he had not acted with malice aforethought, in other words.2
‘The prisoner’s look was not better than his character…’
“The prisoner’s look,” wrote the Bathurst Courier, “was not better than his character, it certainly had a tendency to create the conviction of his guilt in the minds of all who beheld him.” However, this conviction of Kelly’s guilt was apparently not shared by the men who sat on his jury. While the Crown had sought a murder conviction, the jury returned a verdict of manslaughter.
In so doing, wrote the Courier approvingly, the jury followed “that humane maxim of the British law, to lean toward mercy, where there may be room for a doubt.” Presumably the jury had been swayed by the eloquence of Daniel McMartin, who had “addressed the jury at some length, in a manner highly creditable to himself, and becoming the important occasion, when life or death were at issue.” They may have also, and more specifically, been influenced by McMartin’s emphasis on the knife as a commonplace item carried by all shantymen.
In any case, Kelly was spared the death penalty. Instead, he was sentenced to twelve months of hard labour at the penitentiary. John Kelly entered the Dominion Penitentiary at Kingston on 15 May 1841, as prisoner number 502, from the District of Bathurst, for the crime of Manslaughter, with a sentence of one year.3
To be continued …
- At the northwest corner of Craig and Drummond Streets. This building, erected in 1822, was destroyed by fire on 1 December 1841 (Bathurst Courier, 7 Dec 1841), and replaced by a new District Court House and Gaol in 1842-43. ↵
- “The difference between murder and manslaughter is, that murder is committed upon malice aforethought, and manslaughter without malice aforethought, upon a sudden occasion only.” William Conway Keele, The Provincial Justice, or Magistrate’s Manual, being a complete digest of the criminal law, and a compendious and general view of the provincial law; with practical forms, for the use of the magistracy of Upper Canada (Toronto: 1835), p. 223. ↵
- Return of Prisoners received into the Provincial Penitentiary in the year ending 1st October, 1841, Appendix H, Appendix to the Second Volume of the journals of the Legislative Assembly of the province of Canada, Kingston, HMSO, 1842. ↵