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The New Zealand Railways Magazine, Volume 9, Issue 7 (October 1, 1934)

Famous New Zealand Trials — The Trial Of Thomas Densley Swales.

page 24

Famous New Zealand Trials

The Trial Of Thomas Densley Swales.

ON Thursday, 5th March, 1868, there began a trial in Christchurch which presented many unusual features and some very inconclusive inferences. Whether the verdict was justified is a question that one may now be permitted to seriously doubt.

In a part of the town, then known as the Market Place, two men were partners in business and lived on the premises. Things had not prospered with them; hard times had caused them to contemplate ending the business and separating. From time to time too, extending over a long period, there was evidence that frayed nerves occasioned exchanges of angry words, but no evidence of personal violence was proved, much less alleged.

During the night of the 7th February, 1868, the house (or an annexe thereto) caught fire, and only one of the two men escaped. The other, the elder of the two, John Rankin by name, perished in the flames. The floor of the room in which he had been sleeping had burnt through and his charred body was found on the floor below, under some parts of the bed frame. The day after the fire Rankin's mate, Thomas Densley Swales, was arrested for the murder of Rankin. The evidence was purely circumstantial and, today, one is entitled to speculate whether the verdict was justified on the evidence.

On the day of the trial's commencing the bench was occupied by Mr. Justice Gresson. Mr. Duncan, of Christchurch, appeared for the Crown while the prisoner had the services of Mr. Wynn Williams. The jury empanelled for the hearing of the case were: Messrs. Chas. Turner (foreman), Ed. Banks, Wm. Bannatyne, Jas. Brace, Jos. Goodwin, Robt. Hicks, Jos. Irvine, Ed. Lees, John Stanton, Geo. Ticknor, Hy. Wyatt and John Yorke—names which are still well-known in Christchurch.

On account of the possibility of proof failing to establish that the remains found on the premises were those of Rankin, the prisoner was charged with, first, the murder of Rankin, and, alternatively, with the murder of a person unknown. The evidence, however, left little doubt that the remains were those of the prisoner's partner.

The Crown relied on the fact that the two men were together in their house at Market Place on the night of the fire; that they had been on bad terms and had actually quarrelled that night. They had gone to bed about 10 o'clock. A young woman, Sarah Ann Pope, living next door, heard a noise which she thought was a groan and soon after, on looking out, saw that the house was in flames. After the alarm was given the neighbours gathered round and extinguished the fire before the house was completely demolished, though part of it was badly burnt. The Crown said that Rankin had been stunned by a blow and then the house set on fire. What evidence there was for that theory will be noticed later.

After the plan of the house had been proved by the first witness, Sarah Ann Pope told her story. She said that she lived next door to Swales and Rankin, both of whom she knew well. After ten o'clock on the night in question (she placed the hour as near 11 o'clock) she heard noises as if shelves were falling. She got up out of her bed and looked towards the next house and, to her horror, saw that the house was on fire. She noticed that a man was standing, quite still, at the bottom of the garden. He was dressed and he was wearing a silk bell-topper hat. The witness then ran out to a neighbour's, a Mr. Money, and gave the alarm. She cried out, “Fire!” and several persons, including Mrs. Money, came rushing out towards her. Next time that she noticed him he was standing quietly near the post office nearby.

Pat Tobin, the next witness, said he knew Mrs. Pope. He also heard the cry of “Fire!” and ran towards the burning house. He tried to open the door, but it was locked. He succeeded, however, in opening the door nearest Clarke's house. The fire consumed three houses in all.

Then came the well-known police inspector, Peter Pender. On hearing the fire bell he went to Colombo page 25 Street. At that time the main body of the fire was in Swales' and Rankin's house. The wall of an adjoining house, which was unoccupied, caught fire. He went up to Swales who was standing in front of the house, fully dressed. He was wearing a dress hat, necktie, collar and coat. He said that he had left his mate upstairs. When he found the place was on fire he shouted a warning to Rankin, who merely turned over in his sleep and snored. Swales told the inspector that he had escaped through the flames. He shewed signs of some burns. When told “You're a curious fellow that you're not looking for your mate,” Swales became excited. After the fire had been subdued the witness searched the house and he found the body of a man lying near the front door. His head was lying towards the North. He called Swales, who, on seeing the body, said, “That must be Rankin. He must have fallen from where he was sleeping, bed and all.” Portion of his clothes and the bed frame were under the body. Later on in the night he saw the accused at Mr. Money's house and heard a man Walton (who was intoxicated) say to Swales, “Have not you just told me that you and Rankin set fire to the house?” Swales said to him in reply, “You want to know too much.”
“She got up out of her bed and looked towards the next house.”

“She got up out of her bed and looked towards the next house.”

The Inspector then called him outside and said that he would have to arrest him for arson. Swales said, “My God, do you mean that? I never set fire to the house. I am sorry for the old man.” The Inspector said that he then took Swales and searched him and found, in what he called his portemonnaie, the sum of £6 9s., some jewellery, a case of razors, a watch and chain, a seal, some keys, a letter and a receipt. So far as injuries were concerned the prisoner's “whiskers and side locks were singed,” said the witness. There was no appearance of fire on the hair covered by his hat. There was no sign of fire on his hat and coat. The bag that had been recovered, and which the prisoner admitted was his, contained clothing, brushes and an insurance policy. The inspector admitted in cross-examination that the ceiling above the spot where Rankin's body had been found was burnt away.

Charles F. Money, a publican, said that he heard the fire alarm. The lean-to at Swales' was on fire. Swales came to the hotel and told the witness that he was in bed when he was awakened by the smoke. The prisoner was fully dressed, “his necktie was nicely tied and his collar was fixed round his neck.” Prisoner told the witness that he had dressed in the yard.

His boots were laced. The witness also spoke of the question put to him by Walton, which had already been sworn to by Inspector Pender. The witness added that the prisoner had also said to Walton that he would not answer him in a public room, Walton's answer to this being, “You're a —– old rogue.”

To a question put him by Mr. Wynn Williams the witness said that Swales had been drinking.

Isaac Allen was the next witness, and he said that he knew both the deceased and the prisoner and they were not on good terms. He saw Swales on the road during the fire and he said to him, “Poor Rankin has not got out of the fire. I'm afraid he's burnt.” The witness asked him how it happened that he was left in the house, and Swales replied, “I called out ‘fire!’ to him, but he replied ‘non-sense,’ and gave a snore and turned over in his bed.” He said that he had thrown the bag, which had been found, out of the window. Later on, Swales told the witness that Rankin had between £20 and £40 in the business. He thought Swales said that if the bag was found then his books were all right.

Elizabeth Smith, of the Wellington Hotel, said that Swales had been drinking on the day of the fire. Previously he had expressed nervousness about fires. He had said that if his house caught fire then the old man might not be able to escape. About 4.30 a.m. she asked him where the fire was and he said he did not know of any fire. She refused him a drink. Apparently at the time prisoner was very much the worse for drink.

Rebecca Money, wife of the publican, went to the fire on hearing the alarm. When she saw Swales she said to him, “What a dreadful thing, Mr. Swales, your house is on fire.” Swales simply put up his hands and said, “Yes, Mrs. Money, my house is on fire.” She then asked him, “Is the old man out of the house?” To which Swales said, “I don't know. I had enough to get out myself.” Thomas Smith, another publican, said he was often in Swales' house. At both 2.30 p.m. and 9.30 p.m. on the day of the fire Swales was in the hotel.

He told the witness that all that was needed was a fire to utterly ruin him and Rankin. Someone mentioned insurance, but the prisoner said, “Don't talk about fires, I am not insured.” Some six weeks earlier he had explained to the witness that on account of his old age and frailty he thought that Rankin would be unable to escape in the event of the building catching fire.

At 11.20 p.m. his wife had drawn his attention to a groan following a blow coming from the direction of Swales' house. He ran out then and noticed that the house was afire. Swales came to him and asked for a drink, but the witness refused to give him one.

Then Detective Harry Feast stepped into the box. He was present when Rankin's body was found. He looked for Swales for the purpose of identifying him. Swales would not stand there, but said, referring to Rankin's body, “Poor old devil.”

Constable Smith then said that on the way down to the city the prisoner had said that it was a good thing that the place had been burnt down as he was tired of it. A witness, John Hicks, was then called to say that he had heard quarrelling in the house about 9 o'clock on the night of the fire. But the next witness, one John Cass, said that about 9 p.m. he was in the house and there was no sign of quarrelling at all! Then came Thomas Raine, Jnr., who said that he was in the house as late as 10 p.m. with Cass, and that Cass and Rankin were both sober, and Swales was drunk. That the fixtures, stock-in-trade and furniture of the two page break page 27 men were insured for £400 was then deposed to by John Cameron, a clerk in the Liverpool and London and Globe Insurance Co.

The next witness, John Lewis, came with a curious piece of evidence. He said that on the 7th, the day of the tragedy, he had let another house to Swales in the East Town Belt with the condition that if Swales proposed to leave the colony he could cancel the lease.

The medical evidence which, in some respects was very unsatisfactory, was first given by Dr. Marshall. He saw the body lying where it was found. The upper part of the skull was missing as well as the lower parts of the legs and thighs. The forearms, too, were much charred. The doctor said that the man had died from the effects of suffocation due to inhaling smoke and deleterious gases from the fire. The windpipe and the lungs were somewhat congested and discoloured by carbonaceous matter. Then the doctor made the startling remark, “I think the piece of the skull was blown off by vapours generated internally and part of the brain was gone!” The absurdity of such a conjecture has only to be stated to be appreciated. The other medical witness, Dr. Powell, agreed that death had been due to inhaling smoke. He thought that Rankin might have been rendered insensible by the smoke.

That completed the evidence relied on by the Crown to prove the alleged murder, and, as Mr. Wynn Williams said he had no evidence to offer, Mr. Duncan addressed the jury. He commented on Swales' conduct during the day. He spoke of the frequent quarrels. He relied on the inconsistent statements of the accused, as well as on the significant fact that he was fully dressed when seen immediately after the fire had been noticed. Would he have stood quietly by and watched the fire if he had not set it alight? There was evidence of intention, too, in that he was proposing to leave the colony.

Mr. Wynn Williams said that the frequent remarks of the prisoner about fires shewed that he was innocent. If he had intended to fire the house he would not have told everybody. He had clearly been surprised by the fire and had said at once how much trouble he had had to escape. His face also was to some extent burnt. The jury had to remember that they were not trying the prisoner as to whether he had been a poltroon and left his mate to die. The charge was that he had murdered him. The origin of the fire was a mystery and the inference to be drawn was against deliberate arson. Counsel relied, too, on the fact that the prisoner, if he had lit the fire, would have made himself scarce and not stood by when others came along. The onus of proof lay on the Crown and there was no evidence that Rankin had suffered any sort of violence at the hands of the prisoner.

His Honour, Mr. Justice Gresson, reminded the jury that the charges rested on presumptive evidence, and he warned them that they would have to be satisfied that the evidence was quite inconsistent with any other theory than guilt before they were entitled to convict. He went through the evidence carefully, and seemed on the whole to sum up in the prisoner's favour. At 7.30 p.m. the jury retired and returned in an hour and ten minutes. The prisoner was, they said, guilty of murder.

Swales had nothing to say when called on and he was duly sentenced to death.

On Thursday, 16th April, the first execution in the Canterbury District was carried out when Swales met his end on the scaffold. He wrote a curious statement which can hardly be called a confession. It is an admission of some wrongdoing, but giving it all the weight it is entitled to there certainly seems grave doubt that the evidence was strong enough to remove the presumption of innocence. When one remembers that he was probably very drunk and that Rankin was sober, it would not have been surprising if the jury had acquitted Swales. In any event the clemency of the Crown in respiting the death sentence might have been extended in this case. It would have been different if he had been in full possession of his senses. The previous statements of fires might easily have been discounted had the jury been a little less severe.

Swales' last statement reads as follows:—

“Tuesday, April 14th, 1868.

I confess, O Lord, before Thee and before man, that without thought or care of what I was doing I set fire to my house thereby causing the death of a poor man and endangering the lives of my poor neighbours. I sincerely ask Thy forgiveness, O God, and also that of my neighbours. I trust in Thee, O God, and sincerely pray from my heart that it may be extended to me. O my God forgive me; forgive me for the sake of blessed Jesus who died on the Cross to save poor sinners like myself.

John Dinsley Swales.”

In a longer statement that he made on the 15th April he gives some details of setting alight the wall paper, but never suggests that he intended any harm to Rankin. The whole circumstances were just as consistent with being a drunken orgy without malice on the prisoner's part as of the grave crime the jury preferred to find against him.