Hugh Collins

44

Maureen Withey on 8th August 2023

Colonial Secretary Index. COLLINS, Hugh. Per "Brampton", 1823 1823 Apr 28 On list of convicts landed from the "Brampton" and forwarded to Windsor for distribution (Reel 6010; 4/3508 p.196) --------------------------------------------------------------------- Maitland Circuit Court. Wednesday, March 6, 1850. (Before his Honor Mr. Justice Therry.) ARSON. Hugh Collins was indicted for setting fire to a barn, in the possession of Charles Burgess, at Wollombi, on the 7th February, 1850, and Martin Cody and Alice Cody were indicted as accessories before the fact. Mr. Purefoy appeared for the two prisoners Cody; Attorney, Mr. Davies. Charles Burgess deposed that he resided on a farm in the Wollombi district, on which he grew wheat and some corn; he had a barn filled with wheat in the early part of February, he having 450 bushels of his own, and James Fletcher 150 bushels; it was a slab barn, with a bark roof; about nine o'clock on the evening of the 7th February witness heard an alarm of fire, he being then in bed; he ran to the door, and saw that his barn was on fire, the fire being bursting out at both ends between the wheat and the roof, and in five minutes after the roof fell in; the fire had got so much ahead that it was useless to attempt to save any of the wheat ; witness's neighbours were Mrs. Woolrych, Edward Paine, and Martin Cody; Cody lived about a mile from witness; Mrs. Woolrych and Paine came to witness's assistance, but it was too late to do anything. By agreement Edward Paine came to witness's place nest morning, at daybreak, and they searched about near the barn for tracks, and about twenty or thirty rods from the barn they could distinguish the imperfect traces of a man's track, and followed these tracks to the public road, where they became quite distinct; they then measured them, and observed that it was a very small foot, and that the right foot turned out rather more than the left; they followed the tracks along the road till they came near Cody's house, when the tracks left the road, and turned off through the trees towards the crossing-place of the creek just below Cody's house, and they followed the tracks to within four or five rods of Cody's house ; they also tried the road beyond where the tracks turned off, and could neither see those or any other tracks ; they called in at Cody's, and asked where Collins was, mentioning that Burgess's barn had been burned down, and that they suspected Collins from finding his tracks near the barn (for Collins being a very small man, and having a peculiar walk, they felt satisfied they were on his tracks) ; Cody and his wife expressed sorrow at Burgess's loss, and said that if Collins had done it he deserved to be punished, and they said that Collins had left their house the previous evening about dusk; Cody then joined Burgess and Pain in the search, and after going past Cody's house and his stockyard they came on the tracks again, proceeding up Warren Creek, up which they knew that Collins was at work falling trees, either for Cody or himself; they followed the tracks for some distance up the creek, and seeing that there was no other track about there they then returned to Cody's house; here Burgess and Paine searched about till they found the same tracks going from near Cody's House in the direction of Burgess's; they followed these tracks, on the other side of the creek, from the first track till they lost it within about 40 rods from Burgess's barn. The same day Burgess went to inform the police, and Constable Henry Blake coming with a warrant. Burgess showed him the tracks, and Burgess and Blake followed them up Warren's Creek for about seven miles, when they got to fallen timber, and not seeing Collins they separated on the search, and Burgess followed the tracks and found Collins in a sort of hut or cave he had made under a rock, and where he appeared to be living, there being a bed and cooking utensils, food, a gun, &c, there ; Burgess cooey'd for the Constable; Burgess told Collins that he had set fire to his (Burgess's) barn; Collins said he had not; Burgess asked how it was that Paine saw him; Collins said he had not seen Paine; the Constable now returned, and Collins's boots being taken off, the Constable compared them with the measurement of the tracks on a stick, and they agreed exactly, and the nails on the boots agreed with the nail-marks on the tracks. The Constable and Burgess then returned with Collins to Cody's house; before leaving the place Collins went into Cody's house to light his pipe, Burgess and Cody being then outside; Burgess heard Mrs. Cody and Collins speaking in low tones inside, and heard Collins say " They can't prove it," to which Mrs. Cody replied " If they can't it will be all the better for you," and she then walked to the door, and sat down. Burgess estimated his loss at £100. Burgess was further examined and cross-examined at great length respecting the terms on which he and the prisoners had been previously, and it appeared there had been an impounding case heard before the Wollombi bench on the 7th February, at which Burgess was a witness on one side, and Mrs. Cody and Collins were witnesses on the other, and that after the case was over the parties met at a public-house, where in the course of conversation Collins told Burgess he had a crow to pick with him for saying that he had taken a false oath; Burgess denied having said so, and some unfriendly conversation followed, in which Mrs. Cody took Collins's part, but no threats passed. Mary Ann Woolrych deposed that she resided about three hundred yards from Burgess, on the other side of the road; she had come home from a distance of four miles on the evening of the 7th February, and got supper after she reached home; she then went to her door, and was astonished to see Burgess's barn on fire, and blazing furiously; it had been dark before, and she had seen no person moving about; she gave the alarm to Burgess. Edward Paine deposed that he lived about half a mile from Burgess, and did not observe the blazing barn till it had been burning some time, when he instantly went to Burgess's assistance, but they could get nothing out from the barn. The following morning he went to Burgess's again, and they sought out the tracks and followed them. This witness then corroborated Burgess's evidence, but stated that when they called at Cody's, Cody told them that Collins left his house the previous evening at dusk to go up the creek, where he was at work. Constable Henry Blake corroborated Burgess's evidence as to their finding Collins; witness found the box of matches produced in Collins's cave, and took the boots produced from his feet; witness felt positive that the tracks were made by Collins's boots, and Collins admitted that that was the way he came up the creek the previous evening; witness was not shown any tracks till Burgess and he had got past Cody's house on their way up Warren Creek; was not shown any tracks between Cody's house and Burgess's barn: there were some logs burning about a mile beyond Collins's cave or hut, but none near his hut. James Fletcher deposed that he had a quantity of wheat in Burgess's barn before it was burnt down. Richard Paine deposed that he lived near his brother's house, and took supper with him on the evening of the 7th February; about nine o'clock witness thought he heard something in the corn, and he went out to the creek, and in a short time saw a small man, just like Collins in size, coming from the direction of Burgess's barn, and going in the direction of Cody's; witness drew aside as he came near, and the man passed about three rods from him; but witness could not say that it was Collins, or what dress the man wore; almost immediately afterwards witness saw a great light, as if the moon had risen, but soon saw that some place must be on fire, and running home he saw that Burgess's barn was on fire; where witness first saw the man was perhaps a hundred rods from the barn. Jane Stewart, a girl of sixteen years old, but small for her age, deposed that she was at the time in the service of Cody, and remembered Mrs. Cody and Collins coming home from the Court about an hour before sundown; they talked in Irish for some time, which witness did not understand; Cody came home about the same time from Maitland; witness went to put out the bullocks on the mountain, and on her return Mrs. Cody told her to saddle the mare for Collins to take up the creek; Collins was falling timber up the creek for Cody; witness saddled the horse, but Collins did not use her, but after he had left on foot Cody took off the saddle, and let the mare loose; before Collins left he lit his pipe, and trying his matches he said they were no good, and asked Cody for his; Cody brought him some in a tinder-box, and Collins took some and put them in the box produced; witness never saw Collins try any matches on any other occasion, nor was ever before told to saddle the mare for him. The next morning witness saw Collins's tracks near the house, after Burgess and Edward Paine had been there enquiring for him; she told Mrs. Cody of this, and Mrs. Cody told witness not to tell Burgess that she had seen the tracks. In cross-examination this witness said that she had never before deposed to her seeing the tracks, nor to this last conversation, nor to Mrs. Cody and Collins speaking in Irish. She also stated that her depositions were not taken by the bench before the prisoners, but that only the magistrate, Major Sullivan, the clerk of the bench, and the Chief Constable, were present. She also stated that she had since left Cody's house, by orders sent her from Mrs. Cody, and had been since residing with Burgess; it was after she had been at Burgess two days that she first spoke about her seeing the tracks, and Mrs. Cody's telling her not to mention it to Burgess. Sarah Paine, a little girl of eleven years old, deposed that she was the daughter of Edward Paine, and that Collins rode her father's horse to Court on the 7th February; in the evening she went over to Cody's to bring the horse home, and while Collins was mending the bridle he was talking with her, and he made one remark as follows: "The b - wretch, I'll go and see him tonight, the b- wretch;" who he alluded to she did not know, nor could she remember anything else he said; no other person was within hearing; witness left with the horse as soon as the bridle was mended. Alice Paine, wife of Edward Paine, deposed to a conversation she had with Mrs. Cody on the 7th, but nothing of importance was elicited. This closed the case for the prosecution. Mr. Purefoy, who had cross-examined many of the witnesses at some length for the two prisoners Cody, applied to his Honor to know if he thought there was sufficient evidence to send the case to the jury as regarded the charge against the Codys of being accessories before the fact, quoting authorities in support of his position. His Honor said he should send the case to the jury, although the case against Cody was very slight, and that he should reserve the point raised by Mr. Purefoy. The Attorney General said he would consent at once to Cody's being acquitted, the evidence against him being too slight to warrant a conviction. The jury, under his honor's direction, then acquitted Cody, and he was discharged. Mr. Purefoy addressed the jury for Mrs. Cody. Before they could consider her case they must, satisfy them selves as to whether or not Collins set fire to the barn, for if he did not she could not, of course, be an accessory. If they thought that Collins did, he confessed he could not see any reliable grounds for supposing for a moment that Mrs. Cody ever knew of Collins's intention, much less counselled, aided, or abetted him; for she could not be found guilty under this indictment, even if Collins did commit the crime, and she was previously aware of it unless she did or said something to aid and abet him in committing it. On going through the evidence there was really nothing against her except the evidence of the girl, Jane Stewart, and he thought her admissions in cross-examinations had deprived her of all claim to credibility, she had not only not said a word about the speaking in Irish or the injunction to her not to speak of the tracks she now said she saw, when giving her depositions before the magistrate, but had never said a word about either till she had been residing for some time in Burgess's house. He need not allude to the irregularity of her deposition having been taken in the absence of the prisoners, for however improper that was, he felt sure that it was only done through the inadvertence of the magistrate and not with any improper intention [The Attornev General here remarked that there was no appearance of such irregularity on the face of the depositions which appeared to have been all taken in the usual manner.] But even if the jury could bring themselves to the conclusion that Stewart's evidence was to be relied on, it was not sufficient to prove that Mrs Cody even knew of Collins's intention before he committed the crime for what was more natural than that Mrs Cody should allow Collins the mare to ride to his usual residence up the creek, it being so late in the evening, and Collins having ridden so far that day, while Stewart admitted that the mare frequently ran at this place up the creck. As to what Stewart said of the conversation between herself and Mrs Cody the next morning, and the conversation Burgess stated that he oveheard between Mrs Cody and Collins in the house after Collins was apprehended, the jury would remember if they believed the one, and thought the other might not be mistaken, that nothing said or done after the offence could implicite Mrs Cody and indeed her reply to Collins showed rather a natural wish that a man employed by her husband might be proved innocent of such an atrocious charge than any other feeling. On the whole evidence he relied with perfect confidence on the jury's acquitting his client. Collins in defence said nothing, but called John Kenny who deposed that he was a shoemaker and made Collins's boots and had made number of boots for other people on the same last. The nails in the boots produced were arranged much as witness usually put them, unless he received specific instructions. The Attorney General cross examined this witness and replied. His Honor summed up at some length, instructing the jury as to what constituted an accessory before the fact namely that there had been some actual counselling aiding or assisting towards the object being affected, before the act was committed ; for mere knowledge, 0r even tacit permission, would not be sufficient. From the evidence the jury must draw their own conclusion as to whether, if Collins was guilty, Mrs Cody was an accessory. The jury retired for a few minutes and returned with a verdict of guilty against Collins, and of not guilty as regarded Alice Cody. Collins was remanded for sentence, and Mrs Cody was discharged. The Maitland Mercury, 9 Mar 1850. Hugh Collins, who was on Wednesday convicted of arson, was sentenced to ten years' hard labour on the roads. This prisoner had also forwarded a memorial to his Honor, praying for mercy, asserting his innocence in the most solemn terms, and pleading his age. Maitland Mercury, 9 Mar 1850.

341

Maureen Withey on 29th June 2023

Irish Convict Database, by Peter Mayberry. Hugh Collins, age on arrival, 21, per Brampton (1823) Tried Kerry Co.. 1822. Life. DOB 1802, native place, Kerry. Weaver.