Supreme Court, Part 2

Reprinted from the Evening Telegram,
March 20, 1925

(Before Mr. Justice Kent)
Case-The King vs Accused Uncle

When the trial of Albert George Benson charged with murder of his nephew, Walter John Sheppard, was resumed yesterday afternoon the following witnesses were called:-

Simeon Boyd King, sworn, examined by Mr. Fox. Witness knew the accused and also his nephew, Walter John Sheppard. He was a nice little boy. He was tall but not so very stout. He was nine years and nine months old. On January 21st he saw the accused just down from his house. In a conversation witness asked the accused what had happen [to] John Sheppard and was answered he did not know. He said he left the boy to pull down some logs and when he looked he saw him lying face down among some small trees. This was about 12 o’clock. After dinner the witness went to the house of accused and there saw the dead body of Walter John Sheppard. There was a mark on the boy’s temple and also bruises on his lips. He was not sure if the accused was in the house at that time. The next day, Thursday, witness called up Mr. Frost, sub-sheriff, by telephone, and asked him if he could bury the body, but was not allowed to do so. The next day, with Benomi Robbins and Dell Squires, they went into Bayley’s Cove path. They went up to a Scrape which led to a hill off Bayley’s Cove path. There they saw a bunch of dogwood trees and also some spruce trees, but nothing else. They then went in Bayley’s Cove path, away from St. Jones Within. They went about thirty feet and saw some blood marks, they were on the right side of the path. The snow at the spot appeared as if it had been trampled on. The trees there were low fir trees. Bayley’s Cove path is just a side path and is different widths. After that the witness came home. He had no further conversation with the accused after Wednesday, January 21st. The boy’s body was sent to St. John’s. In their conversation accused said he had found the boy half way down the hill, he could not speak. Accused said there was life in him when he picked him up.

Cross-examined by Mr. Bradley, he had only one conversation with Albert George Benson. At the time witness was unloading his slide near his house. Accused said he was going to tell his brother David. It was about twelve o’clock when witness saw the accused. On Friday witness went in to make an investigation. On Thursday night previous to that it rained. The blood marks appeared to be scattered around, there were two spots there on the right side of the road going away from St. Jones Within. The marks did not look fresh. They appeared as if they had been trodden over. They had a pale appearance, due probably to the rain. Witness saw no footprints, but it seemed as if some one had trampled over the snow previous to the rain. The rain had the snow in such a condition that no footprints could be seen, as a matter of fact he did not know if they were any footprints or not. When witness was speaking to the accused he was told the boy was almost gone. The boy was not dead at 12 o’clock on Wednesday. Accused went to tell his brother when he left witness.

Re-examined by Mr. Fox, accused said the boy was almost gone at 12 o’clock. 

William James Frost, sworn, examined by Mr. Hunt. Witness lives about 9 miles from St. Jones Within. There is a road connecting. There is a telephone system connecting. In January witness heard that a boy had been killed. He received a telephone message about 11 o’clock in the morning. Accused called at the store of the witness that evening to get the burial outfit. When the accused handed order for the coffin trimmings, which was signed by his brother, David, he was asked what had happened. Accused said that he and the boy went in the woods to get some white-ends. Coming down the hill, where the sticks were, the boy tripped and when he came down to him the boy was dead.

Cross-examined by Mr. Bradley. This was the only conversation held with the accused. The order was from David Benson, brother of the accused.

Constable Robert Pittman, sworn, examined by Mr. Fox. Witness is attached to the detective force of the Constabulary Department, and is stationed at St. John’s. On January 23rd accused left for St. Jones Within on the instruction of the Inspector General, with orders to enquire into the death of the boy Sheppard that had been reported. On arrival there on the afternoon of the 24th, witness began to make enquires. He saw the body of the boy at the home of Benson, and made a casual examination. There were some bad marks on the left temple and some other marks on the face. These were all the marks the witness saw. Witness had no conversation with the accused about what had happened. The next day the accused accompanied the witness to where the accident occurred. Accused said he left his horse and slide at the foot of the path leading to Bayley’s Cove path. (Witness points out spot on map.) The boy was left about 40 feet up the Scrape to remove some logs down to the slide, and accused went further up the Scrape, about 60 feet. Later he saw Walter John Sheppard lying face down in the snow with his head on some alder bushes. Witness made a thorough examination of the place where he had been told the accident occurred. Going farther in Bayley’s Cove path witness saw some blood stains scattered around. There had been rain but there were still quite a number of marks around. Accused was standing near at the time and he could not account for the blood marks. He said he thought they might be caused by a horse’s foot having been cut. The snow with the blood marks on it was taken in to St. John’s. About twenty feet beyond the blood marks, he saw an old coat lying on a tree. Accused said it belonged to him but said he had left it there several days before. Where the blood marks were there were only small trees. The top of the tree was about sixty feet also from where the boy had been left according to Benson’s story. The body of the boy, and also the accused, were then brought in to St. John’s. The accused was given the usual caution. After arriving in St. John’s accused in a further conversation said he supposed the truth was the best told. He said that half way up the Scrape a tee had fallen and killed the boy, and that he picked up the body and laid it down on the snow where the blood marks were. Accused said he was frightened when the boy was killed and told a different story. The witness had no further conversation. He was present at the post mortem examination: it was held on the same afternoon of the same day the body arrived.

Cross-examined by Mr. Bradley. When witness saw the accused he was willing to go into the scene of the accident, he called at the boarding house of the accused by arrangement. About mid-day they came out from the scene and in the afternoon witness arrested the accused. He was not cautioned before being questioned previous to his arrest. Witness did not examine the body of the boy except in a casual way. He saw the top of the tree and further down two pieces that also belonged to the tree. The tree was further up the hill than the bunch of dogwood. It had fallen up the hill. There had been snow between the time of the accident and the time of examination. Witness did not know there had been rain but was of opinion that this was so. After arrival in St. John’s accused was brought to the police station. There he was cautioned again. Witness was curious why the accused had said nothing about the boy during the passage, and witness thought he might have said something. Witness told Benson he was not bound to say anything, but what he might say would be used against him. Accused did not say anything after he had been cautioned. Witness said he thought it was strange about finding the blood marks. He had known cases, he told the accused, where persons had done things either by accident or in a passion and had been too alarmed to tell the truth. After that the accused said he supposed the truth was the best told and then told him that the tree hit the boy and knocked him down. Accused said he was so frightened that he had told different stories.

 

Dr. Brehm, sworn, examined by Mr. Fox. Witness is medical officer of health in St. John’s. Witness remembered having to make an analysis of some snow on which were blood stains, in January last. They were brought by Constable Pittman in a tin. On the account of the contact of the blood with snow and water, the corpuscles could not be examined.

This finished the Crown case and a brief recess was taken to allow the tree to be brought into court.

 

Albert George Benson (sworn, examined by Mr. Bradley) – He lives at St. Jones Within. He is married: his wife is alive and his father lives with him. He was an uncle of the boy. The boy’s mother, who is now dead, was his sister. His sister is dead two years and when she was dying it was her wish that witness should take the boy. There is a school in St. Jones Within: it is open four or five months, principally in the winter. The school closed last May and opened about December. Accused was not home when it was opened, he was then at Corner Brook and returned two days before Christmas. The school was opened after Christmas holidays and the accused’s wife said that she would send the boy about February 1st. On Jan. 21st witness got up and prepared to go in the woods. The boy went with him. He was a wonderful boy for wanting to go in the woods: he had rabbit slips there, and a couple of days before they had been in and set slips. They left home about half past nine and went about a mile from home. They went on Hatchet Line and then turned in on Bayley’s Cove Path. About half a mile in the horse was left, and the accused went up a scrape that turned off Bayley’s Cove Path (points out on the map the spot to which he referred). He went up on the top of this hill and the boy went with him. There he started to cut the tree that was in court. The boy was standing about eight or ten feet to the left. The right side of the accused was towards Bayley’s Cove Path. He was going to fell the tree diagonally from him. The tree when standing was about 25 or 26 feet high. He told the boy to stand back, but he went contrary to where he was told to go. At that time there were four or five required to cut the tree, but a squall of wind struck it and the tree fell and struck the boy. About three parts of the tree up struck the boy. He then lifted the tree off the boy and picked him up; he then took the boy in the path and laid him down on a bag of hay. He was taken in the path because on the outer side there was a marsh. He took him in thirty feet because he wanted room to turn the horse. He took about half an hour to come out. After getting in the woods that was the first tree he started to cut. On the way out he heard the boy groan several times. His wife asked him what was wrong with the boy and he said he did not know. He then sent for his brother’s wife and Mrs. Brown but when they came the boy was dead. He then went in the woods to tell his brother about the occurrence. On the way in he met Mr. King. He met his brother just clear of the woods. That evening he made ready to go to Hillview to get the trimmings and the casings for the coffin. He wanted to get them from Mr. Frost and carried to him a note from his brother. On Thursday morning Robert Miller came after him to go in and show what had happened to the boy. The boy’s father was telegraphed that morning. Accused cannot read and write very well. On Saturday night he first saw Constable Pittman who came to his house and asked accused to go in the next morning to where the accident happened, and they both went in. Accused was arrested on Sunday after they came out of the woods. He had a conversation with Mr. Pittman, in the Court House, downstairs. He then told the constable that because he was frightened at first he told an untrue story, and the correct thing was then told. He lodged the boy down at the spot where the blood marks were. The boy was not bleeding, but he was not prepared to say that the marks found were not blood marks, nor that they were not the blood of the boy. He was not prepared to swear anything about them. The boy was a good boy. The boy did not disobey the accused that morning, and he never struck the boy in his life. He had no stick in his hand, and he did nothing at all to injure him. He would say the marks on the face and temple would be caused by the limbs of the tree; the limbs would also cause the marks on the back of the arms, but witness could not say what caused the marks on the back of the thighs.

Cross-examined by Mr. Hunt. When his sister was dying, it was her wish for him to take this boy, his brother another, and his other sister the girl. After about four or five months he had been receiving five dollars a month for keeping the boy, from his father. When the boy was brought his father said he would do anything he could to keep him. There was no arrangement made for payment. The boy was a nice size boy for his age. He was never sick. In January he was well. He was in the woods two or three times before that, with the accused. When he went in he would not go out of sight and would generally be setting rabbit slips. Every time he went in the woods he went after rabbits. On this day he went with the intention of going to his rabbits slips. Just clear of the hill, on Bayley’s Cove Path, there was a marsh. On the way in they went to the snares, there were no rabbits there. The boy had two or three snares and accused had two. There were no rabbits. The day was not a cold day, it was a fine day, the wind was westward; it was squally. There had been a spell of mild weather and a spell of frosty weather. They went over the marsh to the rabbit slips; it was frozen over. They had to leave the slide to go to the snares; both saw all the snares. The horse was stopped down from the scrape. They were about five or ten minutes at the snares. They then went up to the top of the hill. Before coming to the scrape he did not like to let the boy go home by himself, so he went to the top of the hill with him. He was talking about the slips; he was wondering why they got no rabbits. The boy was not asked to do any work at any time. He was standing about 8 to 10 feet away. There were other trees standing around but this tree was open for the length of the tree around where it was going to fall. This was the first tree that was cut. It would take about five minutes to cut, it took about 8 or 10 chops on either side to cut. If the tree had fallen the way he thought it would go the boy would have escaped, or if he had come towards him he would have escaped. The limbs of the tree came on him. He had to make two or three more chops when a squall of wind came and struck the tree. When the tree feel the boy was about four or five feet from the tree, and the boy put his hands up, and the tree struck him in the face; as he came to the tree his right side was towards him. The tree fell up the hill. He did not see the boy falling. He saw him with his hands up and made a cry for him to get out of the way. The tree was at the time green; the limbs of the tree struck him. Where the tree went down was level. The top of the tree would be between the east and the south. When he saw the boy first all his body was under the limbs. When he saw the tree on the boy he took it off. When the tree fell it was in one piece; at that time nothing was done with it. About half past twelve he went in and cut the tree up. He went in after his hatchet and gear. After lifting the tree off the boy he made a couple of groans. The boy had not bled at all. The horse was not turned around until the boy was down. The marsh was frozen. The boy was brought in the road and where he was put down was about where the blood marks were. If the boy was put on the edge of the scrape he would have to be put on the junks and he did not want to do that. The coat was about thirty yards in from where he lodged the boy. The coat was an old one he sometimes wore in the woods. On the way out he met nobody; the first person met was his wife who asked what had happened to the boy, and he told her that the boy had tumbled down the side of the hill to the dogwood. He was so frightened that he did not know what he was saying. He did not know why he was so frightened to say that the tree had fallen on him and was not frightened to say that the boy had tumbled into the dogwood. After going back the second time he took the bottom parts on to Bayley’s Cove Path, he took the two bottom parts on to the path and left the top part where it was. On the road he met his brother and told him the same as he had his wife. He met King before he met his brother. The boy died about five minutes after he was brought to the house. He told King he left the boy to pull down some logs.

At this stage adjournment was taken until ten o’clock this morning.

 

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