The New Zealand Railways Magazine, Volume 9, Issue 3 (June 1, 1934.)
Famous New Zealand Trials — The Trial of James Collins
The old adage, “Sticks and stones may break my bones, but names will never hurt me,” is familiar, perhaps, to every school child. The adage, to some extent, expresses the law so far as provocation is concerned. However, while inany people resist, even to the point of inflicting grave bodily injury in retaliation for physical assault upon themselves, such retaliatory methods, when applied as punishment for mere abuse or verbal humiliation, will not be tolerated in the eye of the law:
Two fine soldiers in His Majesty's 65th Regiment were bad friends. They were Colour-Sergeant James Collins and Ensign William Alexander. Both had come to New Zealand in the days when the Maoris were troublesome. Collins was efficient and respected and had only one enemy. Ensign Alexander, with his feet on the first rung of the Commissioned ladder, had risen by sheer efficiency from the ranks. Of course, some people succeed and rise by trampling on their less aggressive rivals. Perhaps Alexander belonged to that not very popular type of individual. There is another type, also unpopular, and that is the man who, when he succeeds to a position of authority, manifests his superiority over his subordinates by bullying and other acts of humiliation. Alexander certainly belonged to this latter type. Such men usually have one or two men on whom they pick for the purpose of practising their cruelty. Collins was Alexander's bete noire.
In November, 1861, the regiment was stationed at the Rutland Stockade in the Wanganui district. It was a regiment with fine traditions, and every man was proud of his association with it. Marching along the streets of Wanganui in those days, this regiment was one of the sights of the town. It was on such an occasion that Collins wsis provoked to commit an act that resulted, ultimately, in his standing his trial for the murder of his superior officer, Ensign Alexander.
When asked by the Coroner if he desired to say anything, Collins stated: “If Mr. Alexander had not done me an injury I would not have thought of shooting him. For the last eighteen months he has been abusing me on parade; likewise off parade, by saying that I was a damned stupid ass and that he would have me reduced, or he'd know for what! On the 1st November (after the route march and as the result of an incident on that march) he said he had a damned good mind to put me on the shelf, that is, to place me under arrest; that I looked such a smart fellow, and he added: If I could catch you at any time I'll place you in the guard room; you'll be in before long, if I can do anything in it, you damned smart chap, I'll let you off by making you march out the same distance again; be off to your barrack room, I'll give you a chance.’ And as I turned to go he shouted: Before you are much older you will not be wearing that jacket.’ I had previously applied for a discharge from the regiment, but Mr. Alexander had torn the application up and thrown it in my face. When he did that I marched away, but before I had gone ten yards he called me back, and said: ‘I'll teach you a trick yet, before I've done with you.’ I told him that I did not think I had committed any crime. ‘If you don't think so I do, and I'm damned if there will not be one against you, you useless member of the service.’ It was five days later, as acting Sergeant-Major, I was passing through the barrack square, and he called me over to him. ‘You think yourself a damned smart fellow, don't you. You're everything but that in my eye.’ And from then onwards he went on in the same way. Whenever he met me he abused me. He abused me once for not putting a man under arrest who was drunk in town, though I had not been out of barracks that day. On the day in question, after the abuse he gave me in the barrack square he enraged me to such a degree that I lost all recollection of what I was going to do. I went to the orderly room and shot him.”page 25
The trial was held in Wellington, before Mr. Justice Johnston and a jury of twelve men. Messrs. Brandon and Izard appeared for the Crown, while the prisoner was represented by Messrs. Hart and King. The trial was heard on the 3rd December, 1861.
Mr. Brandon took some pains to open the case to the jury. He told them it was a case of the prisoner having killed his superior, officer. No question wound really arise as to whether a murder had been committed or who actually had done the killing. He detailed the facts immediately preceding the killing, and told how, after the parade, Collins had retired to the barrack room, emerging shortly afterwards and going into the orderly room, saying to the deceased: “You will never jaw me any more,” and then shot him dead. Immediately after the incident, and on coming out of the orderly room he said to a Sergeant, who would be called as a witness. “Don't be frightened, it was I who did it.” Touching the question of provocation, Mr. Brandon said that there had been ample time for the accused to cool down from the moment he had been spoken to by the deceased on the parade ground, and the time of the shooting.
Then the witnesses started to detail the circumstances that were relied on to establish the case for the Crown. The first witness was Sergeant John Drummoad. He said thai between noon and one o'clock on 1st November, the accused had come into the orderly room and shot Ensign Alexander. He heard him say to the deceased: “You will never jaw me any more.” Ensign Alexander rose from his chair a founded, and turned round as the prisoner entered, and accosted him. He said nothing when the accused thus addressed him. Then the shot rang out, and the Ensign said to the witness: “Oh God, Drunimond, I am shot.” The witness caught Mr. Alexander as he was falling, and laid him gently on the ground. He loosened his clothes, but he died at once. The witness added that the shooting took place a quarter of an, hour after the regiment had returned from the route march. Mr. Alexander was the garrison Adjutant. Under cross-examination from Mr. Hart, the witness said he had been in the regiment for 16 1/2 years. He had known the prisoner since the year 1848. One of the duties of the prisoner was to, attend to the colours in the field. That honour was only bestowed on men of approved valour and fidelity. It was a well understood rule of discipline that officers were to avoid reproving noncommissioned officers in the presence ot private soldiers, lest they weaken authority and lessen their respectability, unless, of course, in certain extraordinary circumstances. It was a well known rule that non-commissioned officers were not to be subjected to minor punishments. It was also true that even corporals could not forfeit their good conduct pay without a court martial or by a Magistrate. Both officers and non-commissioned officers were trained in a system oi command and treatment of others that was free from the use of coarse and offensive language. There had been no crimes entered against the prisoner. He belonged to No. 2 Company, under Lieutenant Lewis. The deceased was acting Captain of his company. No. 2 Company had been in Wanganui for four years, and the prisoner had been with it there for two or three years. The Commanding Officer at Wanganui was a brevet Colonel and a Major in the Regiment. He often inspected the detachment at Wanganui. The last time that he did so was probably three weeks before the 1st November. Besides the two companies of the 65th Regiment there were two companies of the 57th and some Artillery and Engineers in Wanganui. All were under the command of brevet Colonel Murray of the 65th Regiment. An inspection by a general officer gives a non-commissioned officer an opportunity of making any complaint he may care to prefer.
Sergeant Samuel Neill, another noncommissioned officer of the 65th, then took the oath, and said that he was near the orderly room on the 1st November. He heard the report of a rifle. Immediately after hearing the sound he saw the prisoner walking quickly. He had his rifle in his hand. He heard the orderly Jackson exclaim: “The Adjutant is shot!” The prisoner then said: “Don't be frightened, I did it.” Under cross-examination, the witness said that he had been twenty years and ten months in the regiment. He remembered when the deceased was promoted from Sergeant-Major. He was a full corporal when the witness joined the regiment. He was Ensign and Adjutant at Wanganui. The witness said that he himself did not attend parades. The character of the prisoner was good. The deceased was always, as far as witness was aware, respectful towards the prisoner.
Private Thomas Pressnell, also of the 65th Regiment, was then called to say that he went to Collins’ room between noon and one o'clock on the 1st November, for some money. The room was about thirty yards away from the orderly room. The prisoner was in his bunk, which was in a small apartment measuring eight feet long by five feet wide. When the witness entered he saw the prisoner buttoning his shell jacket. When the men were on the march, the witness added, in answer to a further question, they wore their tunics The witness was the regimental schoolmaster. “When I asked him for the money,” said he, “the prisoner said By and bye.“’ His rifle was standing upright by his side. As he left the apartment he took his rifle with him. He. shewed, so far as the witness could see, no sign of excitement.
Sergeant William Anderson, of the 57th Regiment, said that he was present when the prisoner was handed over to the civil authorities. The Corporal of the Police said to him: “I caution you against saying anything that may be brought against you at your trial.” The prisoner said: “I don't care, I have done it, and I am glad, and if I had the same to do again, I should not stop at it.” The cause of death was then deposed to by Staff Assistant Surgeon Edward Denham Tomlinson, who page 26 page 27 made a post mortem examination of the body. In his opinion Mr. Alexander had died of a gunshot wound in the chest and lungs.
It was then proved that there had been no orders given to load rifles, and they should not have been loaded. The witness was Private James Saville. In cross-examination he said he had noticed the conduct of the deceased towards the prisoner. He was going on to tell the Court what he had seen between the two men on the 21st October, when the Crown Prosecutor objected on the ground that the crime of murder could not be reduced to manslaughter if there had been sufficient time between the provocation and the crime wherein the prisoner could have cooled down. Here, it seems, the counsel for the prisoner did not fight the matter hard enough. It might well have been left for the jury to decide whether the provocation was gross enough to have affected the prisoner over the time that did actually elapse. However, Mr. Hart seemed to have accepted the ruling against him apparently with approval.
With that witness stepping out of the box the Crown closed its case, and Mr. Hart intimated that he did not propose to call evidence. In the usual course of events, therefore, the first speech would have come from the Crown Prosecutor. He, however, apparently thought the case was so clear that it was not necessary for him to make the address. So Air. Hart then presented the defence, in a speech which seemed to err on the side of brevity, and he also admitted that verbal provocation would not justify a verdict of manslaughter. He conceded, as indeed he was bound to, that his client did the shooting. Then he went on to make what seems a quite unnecessary concession to the jury that mere verbal provocation was not enough. Whether or not that was true it was hardly part of the duty of the counsel for the prisoner ro make the comment. It is not difficult to imagine a series of acts of provocation without physical violence by a person in authority to an inferior that would ultimately sap the latter's judgment and cause him to lose control. Mr. Hart concluded his speech by reminding the jury of the excellent character of the prisoner, and suggested that the only conclusion to come to in all the circumstances was that the prisoner was insane at the time he killed the deceased.
Looking at the case now, after so many years, it may well have been that, had the defence called a number of witnesses to establish brutality by the deceased over the prisoner, a jury would not have been averse to finding that he was guilty of the lesser crime. It is not difficult to imagine that persistent bullying and humiliation imposed on a junior by his superior might ultimately result in some form of retaliation, even if it took the form of physical violence.
The Judge, in his summing up, started by pointing out the difference between murder and manslaughter, and then he proceeded to comment upon the evidence that had been given. If the prisoner killed the deceased, there was nothing in the opinion of the Judge justifying the reduction of the crime to manslaughter.
The jury were not out long, and returned with the adverse verdict of guilty of murder.
The inevitable sentence was then imposed with all the solemnity that becomes that awful proceeding. Throughout, the prisoner displayed the greatest firmness, and on the signal of the warder marched off to his cell with a firm step.
Immediately after the sentence persons of all stations in life took steps to have the sentence commuted to one of imprisonment for life. Several petitions were drawn and widely signed. Perhaps the greatest individual exertions on behalf of the prisoner were taken by the Bishop of Wellington, the Rev. A. Stock, and the Rev. Mr. Hogg. These gentlemen knew that there was much that was good in the man. He had served his country in peace and war with distinction and advantage. He had never before been guilty of any form of crime. There, too, was much truth in the treatment meted out to him, as he averred, by the deceased.
Without the dreadful crime to his discredit Collins would doubtless have continued the life of a brave and honourable soldier of Her Majesty Queen Victoria.
It was decreed, however, that the sentence of the law should be carried out. On the 30th January, 1862, he was hanged within the precincts of the prison. This was the first execution in New Zealand not carried out in public. The privacy of the execution was rendered possible by the passing of the Execution of Criminals Act, 1858. Murderers, previously, had been executed in front of the prison in which they were last confined, and great crowds of men and women, morbidly1 inclined, would gather round the scene to witness the gruesome sight. The night before Collins was executed he spent in praying and crying. Apparently he did not sleep at all. The ministrations of the reverend gentleman, however, had a good effect on Collins. He died repentant and without fear. His last letters blamed drink and bad company for his crime. There was, however, nothing revealed to justify an inference that drink had anything to do with his act.