Australian English Genealogy

Descendants of Thomas Eather

Notes (Page 13)

1073. Cecil G Eather

Cecil Eather Acquitted
Chung Foon's Death
The Parramatta North Tragedy
Before Mr. Justice Pring, at the Central CriminalcCourt, (on Wednesday, (Cecil Geo. Eather was arraigned on a charge; of feloniously and maliciously murdering Chung Foon at Parramatta North on March 16.  Mr. Bavin was Crown Prosecutor and Mr. Flannery (instructed by Mr. W. H. Atkinson) was for the defence.
An interpreter having been sworn, Chung Tong, a Chinaman, residing at the North Rocks garden, deposed that the deceased, who was supposed to be working in the garden till 'mid-day, did not come to dinner that Sunday. Witness went out to look for him. One of the other men belonging to the garden found him. That man called out and witness went to the spot where he was and saw the deceased's body. It was in the lime near the garden. The police and a doctor were sent for. Dr. K. A. Phipps Waugh, Parramatta, deposed that on March 16 he was called to the Chinamen's gardens near Rocky Hall. Found that a man lying in the lime there had died recently. He had a small punctured wound on the left side of the chest. Made a post-mortem examination the same evening. Found a wound, corresponding to that already mentioned, in the chest wall and through tho left pleura, left lung, pericardium and the heart:, found the bullet in the chest cavity. In. his opinion death was due to the bullet wound described. The man might have lived ten seconds (not longer) after being shot. He might have run ten yards. To Mr. Flannery: The wound travelled inwards, upwards and slightly, forwards. The Chinaman was a man of perhaps 12 stone weight. Chung Wun, a Chinaman, living at Rocky Hall garden, deposed that he saw something lying in the lane. He saw the black coat first. Saw that it was a man dead — Chong Foon. . There was a picking fork (fork hoe) by the body. It lay near the deceased— a foot away perhaps. Sergeant McMillan (Parramatta) deposed that he received a call on Sunday, March 15, to North Bocks. Saw the body of a man (a Chinaman), lying in a lane in the Chinamen's gardens. Found a black hat there too. There was a jacket on the deceased's body. There was a hole in the back of the left arm of the jacket. The witness- produced a hat he found.' Frank N. S. Board, a youth, who said that he was a salesman in a hardware warehouse, deposed that he was 18 years of age... On Sunday, March 16, he went with the accused to the Chinamen's gar dens, North Rocks, about 10 a.m. Went for the purpose of buying fruit. Deceased said he had not any. Witness and accused were subsequently sitting, watch- ing, a bird-trap. They were between the Chinaman and the trap. Had a revolver there. It was witness 's brother's revolver. Had cartridges. Walked-down the creek. Fired a shot at a bird. Strolled back to where the trap was. Were watch ing the trap again. Came back on purpose to watch the trap. Pound that the trap had disappeared. Eather called out to the deceased, 'Did you take the trap?' He did not make any reply. He turned and walked towards them. He walked about 10 yards and then he began to run. He had a hoe; and he looked vicious and dangerous. Got frightened. The Chinaman Looked Dangerous. His Honor: You thought he looked dangerous? Witness: He had a dangerous look. Witness: We were frightened. His Honor: So you say. Witness: - and we ran. The witness deposed that he ran to wards Rocky Hull. Accused - ran. to wards the slip-rails, towards the main road. The Chinaman came towards them and they parked. Eather ran away from the Chinaman, who was 30 yards away, coming straight towards them. They, were sitting on the bank when the ac cused called out. When the Chinaman began to run they separated, witness going towards Rocky Hall. When wit ness was at the creek, running away, he glanced back. The Chinaman was still running. He was at the fence when witness next saw him. At that time Eather had the revolver. It was loaded. Witness had given it to Eather, after he (witness) had fired at the bird. Eather had the revolver in his hand when he spoke to the Chinaman. Heard a report later on. 'There were trees obstructing witness 's view as he 'looked towards where Eather was. Didn't look round; kept in running. Ran about. a quarter of mile. Did not hear another report. Got to the North Rocks Road. Met Eather there. He said, 'If the China man had not done it I would not have fired. Was confused. Could not remember now what was said before that. He asked witness where was his (wit ness's) hat. Had dropped his hat. Witness's hat (found in the creek) was. produced. (It had been found in the creek, afterwards.) The witness said further that -Eather said that he hoped the Chinaman was not dead. He gave witness back the revolver and they planted it in the bush (on the way back to Mr. Goodin's). The only thing said to the Chinaman was ' 'Did you take the trap?' Mr. Bavin: Can you account for the Chinaman coming towards you? Mr' Flannery objected, and the question was not pressed. To Mr Flannery: Said at the Coroner's Court that the Chinaman said something. Could' not say what he said. What wit ness said was true. Witness: The Chinaman might, have yelled out. His Honor: He might have done a hundred things. The witness said that he; could not now remember exactly what took place. At the colonial inquiry he said that he was not sure whether his original statement was correct that he saw the Chinaman running after Eather with the uplifted hoe. Was not sure when he made that statement to the police whether it was true or not. Got a salary, 15/- per week. Roger Bede McHugh, laborer, living in Church-street, Parramatta, deposed that he heard five shots altogether. After he heard the third shot he looked in the direction of the creek. Saw Cecil Eather running, with the Chinaman in pursuit. Just as the fifth shot was fired saw the Chinaman drop the hoe that he had held up in the air), grab his left breast, half turn round, and fall. The Chinaman appeared to be about l0ft away from Eather then. A plan of the locality was put in. 'It was His Life or Mine.' The witness continued: When witness stood up the fifth shot followed almost immediately. Eather continued running. He said to witness and the others, 'Don't, squeak! ' Witness said, 'The best thing you can do is to go and give yourself up.' He said, ' It was his life or mine.' That was the first thing Eather said. Nothing more was said that witness could remember. Eather disappeared shortly afterwards. Could see something shining in his hand as he was running towards witness. His Honor: There is no dispute, I under stand, as to the Chinaman having been shot with the revolver. The question is only, I suppose, was the act done in self defence? Mr. Flannery: Yes, your Honor. The witness continued: The Chinaman had- the hoe uplifted, right up over his head. The witness showed the Court how the Chinaman had the hoe uplifted. ' Witness: Earlier in the day the China man said to Mills', ''Why you break down my wire? I think you steal my toma toes.' Mills saifl, 'No, I don't steal your tomatoes; John; I wouldn't eat them. The Chinaman was a fairly active man. 'Don't Squeak.' James Henry Mills, butcher's assist- . ant, working in Parramatta, deposed that he was trapping birds with McHugh : at the Chinamen's gardens' on March 16. Heard one shot. Then four shots. Saw the Chinaman, who put his hands on his chest and fell. Saw Eather. He was running towards witness. He was running steadily. Eather was not more than: five yards from the Chinaman. Eather said, , 'It was my life or his. Don't squeak.' Then he ran on.
Cross-examined: The Chinaman, spoke to witness perhaps about half past 11 a.m. The shooting took place about 11.39 am. It was after 11 a.m. that the Chin man spoke to witness. The tomatoes were up near where witness was. 'I can stand the strain no longer.' Detective N. Moore deposed that he was stationed in Sydney. Saw the accused. Said to him, 'Were you at Rocky Hall on Sunday, the 16th of this month, and did you have any firearms with you, and were you shooting rabbits, or birds?' He replied, 'No, I was not at Rocky Hall that Sunday; I had no firearms; and I don't go shooting birds and rabbits. ' He then gave the names of several per-~ sons' in Parramatta who, he averred, would be able to say that he was in the town of Parramatta. between the hours of 9.30 a.m. and 1.30 p.m. At 7 a.m. on the next day Eather was brought into the police station. He said, I can stand the strain of this no longer. I wish to tell the whole truth about the death of this Chinaman. He appeared to be greatly troubled. Said to' him, 'If you have anything to say it must be absolutely voluntarily. If it incriminates you in any way it will be given in evidence against you.' The accused then made a statement in writing. It was signed G. Eather, and witness witnessed i. The statement was put in. (The statement has already been published in 'The Argus.') The statement was to the effect that he (Eather) fired a couple of shots, over the Chinaman's head before the slip-rails were reached. He fired another shot as the Chinaman came after him afterwards. He fired a fourth shot and he did not know if he fired any more. When witness called to the Chinaman and asked him had he got the trap, he, the deceased turned round and walk towards the fence. He was carrying a hoe. Witness fired two shots in the air before he got to the slip-rails; Got through the rails and he. kicked one of the rails. Got put off his balance as he ran on a few yards. Fell to the ground. The China- man was getting through the rails. Wit ness (fired again when the Chinaman was a few yards away. Tho Chinaman had the hoe over his head. Was in a stooping position, getting up off the ground, when he fired. Then ran on. When witness fired the fourth shot it was to stop the Chinaman and prevent him hitting witness with the hoe. Was 9st 21b. in weight. Played football. Was tired and confused when he fired the fourth shot. The Chinaman gained on witness in the chase. What he did was to save his life, as he thought. ' To the Crown Prosecutor: The China man might have understood what wit ness said when he called out. Did not give the Chinaman any 'cheek'. When refused fruit just walked out of the gar den. Did nothing to irritate the man. He was hoeing. Did not make any re- marks to or about the Chinaman. Later called out 'Have you taken the trap?'' Was not annoyed about the trap going. Thought that the Chinaman had taken away the trap to be nasty. Was as polite to the Chinaman as he now was in Court. Did not know whose trap it was. The Chinaman was a pretty big man and he was carrying a hoe. Could not get away from him. Witness seemed to have no power in his legs. Was a footballer; but on that Sunday could not get away from the Chinaman- (with the hoe): Fired the first two shots not to hit. '* The Law on Self-defence. ? Mr. Flannery addressed the jury briefly. He said that as the learned Judge would tell them, no doubt, a man was entitled to kill another -'in self- defence (subject to certain restrictions). He was not entitled to kill purposely if he had first done something to excite his opponent and had been working out a course to provoke an attack so that he might retaliate. And the same thing might be said if in an assailed man 's honest opinion it was the intention of an unprovoked opponent to do him a serious bodily injury. The Chinaman was within two or three feet of striking distance of Eather, when the fatal shot was fired — to stop the man attacking the accused. It was clear that Eather fired the shot in self-defence to save himself either from death or from serious injury. That was proved by what he -said to Mills and McHugh, 'It was either me life or his. ' He said that in the presence of friends — youths to whom ho did not mind saying.. 'Don't squeak,' Admittedly he told a false story to clear him self, to Detective Moore. He said then that he wasn't there. However, within a few hours — and after ..a night's reflection and without having had an opportunity to consult with' anyone — he told the story of self-defence, (which was really only a correct recital of the real facts of the case.) The accused was telling the truth in both the story he told the police and that he told to the Court that day. The learned judge summed up shortly. He said that a man could not be convicted of wilful murder who killed another whilst entertaining a well grounded fear that he himself would be killed otherwise or suffer a serious bodily injury. Of course, even in such circumstances life must not be taken lightly and it must only be taken as an extreme step. Even if a man had reason to fear that he would be killed by his assailant or would suffer from him serious injury he must put off using any deadly, weapon and put off taking extreme steps as long us possible. In that case whatever might really be the true explanation of tho Chinaman's conduct in attacking Eather, as alleged, all the evidence was the only way, and both the Court and jury sworn in that case had to deal with the evidence given, not with what might or might not have happened. There was no evidence to throw any light on the question why the Chinaman in such a peculiar way attacked the two lads (as they had sworn he did) and go to knock Eather down with a hoe, as he seemed from the evidence to have attempted to do. There had been thefts in the garden before, possibly; per haps the Chinaman was irritated when he left Mills arid McHugh and that the irritation had not died away when the others spoke to him about the missing trap. There might have been some cause given for anger; But be that as it might, the evidence in the case that day was all one way. Eather ran away; the Chinaman was gaining on him. He (accused) fired in the air. That did not stop the China man. He was going to strike the accused evidently. The question was, did Eather at the time of the firing of the fatal shot have reasonable cause to apprehend danger to life or fear of serious bodily injury? The police admitted that Eather was a well-conducted lad. The jury, after a, retirement of about an hour, acquitted the accused, who was discharged.

Source: The Cumberland Argus and Fruitgrowers Advocate 7 June 1913