Chief Justice Needham's Bench Books: Trial of Tom

2nd June 1869

Tom IndianMurder

Plea Not Guilty

Jonathan Martin Salt Spring Island
Farmer — sworn to interpret Chinook

Witnesses ordered out of Court by request of Prisoners Counsel

Mr Atty Genl for the Crown
Mr Ring for the Prisoner

A.G. [Attorney General] states case

Robert McMillan Police Officer
I understand Chinook
sworn to interpret

Henry Sampson sworn

I am a Farmer and Constable in Salt Spring Island. I remember the early part of the month of March 1868. The beginning of March in consequence of information I rec'd I went to the house of William Robinson & opened it. William Robinson was a colored man living on Salt Spring Island. He was a farmer there. The House is made of strong logs some barked some not. The House laid E by W, N [by?] S. Fireplace was E in the middle. No window in the House. The door was on the north side about the centre of the house. There was a bed on the West side along the length of the house. The table was at the East end along the S side.

I found the door locked — no key in. I forced a log out from a jamb of the door. I got through & saw the deceased Robinson laying on the floor on his back. I cd see the clothes [burst?] & blood running from the back & his nostrils. I mean congealed blood. His head was leaning towards the hearth stone of the fire. His left hand held in it a case table knife. His right hand was laying beside him. I did not move the body. I saw a mark on the table as of the print of a ball where it had struck. There were was a plate & a cup & saucer on the table. There was some food in the plate. I looked round the house & at the bed & I missed a chest. I had known the [illegible] of the house [illegible]. I had been in the habit of going there weekly or every two weeks. That chest had always been there. It may have been a month since I was last there but on that occasion I cannot say whether or not I saw the chest.

I saw no gun. I had seen one there previously nearly every time I went there. He had a gun wh he used to keep hanging over the fireplace. It was a double barrel gun. He had an axe wh I used to see there that was not there. It was a large size heavy axe. It had a handle wh I have heard him say he made himself. The handle was peculiar. The axe now produced & shown to me I believe to be the same but I won't swear to it. It is about the same size. The handle is like the handle I've seen in Robinsons house. I used to see a hand saw there wh I also missed.

He had no coat on. He used generally to wear a coat. I searched the house all over for the coat. I cd not find it. I found a ball a small trade ball. I produce the ball wh I found this is it. I saw a mark in the log as if a ball had struck it. The mark was right in front of where the man lay. The man sat on a broken chair placed on a box facing the South wall of the house.

More I examined the body I found two holes one behind & one [before?] as if a bullet had passed through. The one in front was about two inches higher than the one in the back. The back one was close to the spine a little below the shoulder blades. The mark where it seemed to me the bullet had on the log was not quite in a straight line with the two holes in the man's body only was a little higher from the ground. It appeared to be a bullet mark & was just the place where a bullet passing thru the man's body wd strike. Where the bullet struck was 4 or 5 ft from the south Eastern corner of the house. It wd be a straight line from the hearth stone in front of the fire through the man to the mark on the wall where the bullet seemed to have struck.

The deceased had on a waistcoat & shirt when I found him. No blood on the breast of the shirt. There was a hole in it a small one similar to what a bullet wd make going thru. (Both waistcoat & shirt wr buried with the body after the coroners inquest). !!

I turned the man over & looked at his back & there I saw the mark of a bullet hole & then I turned him over & looked at his breast & saw another mark there as if a ball had come out. His legs lay one on one side of the box on wh the chair was & one on the other. He appeared to have fallen back toward the fire. Nothing in his right-hand and a knife in his left.

xx'd [cross-examined] by Mr Ring

Mr Morley was there. A colored boy went w me to the house his name was Clark Whims. I stopped at the house all day till the Evg. There were many there of the settlers. The coroner was sent for but did not come at once. The exam'n before Mr. Morley who is both magistrate and coroner lasted 3 or 4 hours. The first thing I missed was the chest. It was a small one 2 ft x 6 long a box with a lid. made of [a light?] wood. There was one hole that penetrated the body & passed through. The hole in the back was the largest. The breast hole was closed [more?].

axe I believe the axe to be the same. I have worked with it many times & know its feel. I know it also by the handle. The handle is made of oak. It has been made by hand not by machinery. I have not been to the house since the Prisoner was committed. Two [illegible] persons were accused before Mr Morley. I [lived?] about 5 miles from deceased.

Manuel Duwet [Duett] & Clarke Whims were accused. I never heard a reward was offered. Mr Morley gave me direction to [go & examine?] & I did & reported to him. Whims was not accused of the murder he was only exam'd to see if he knew anything about it. I arrested the prisoner. I can't [tell you?] where the axe was found. I found the Prisoner in his house. He was sick. He walked about w a stick. I looked round the Prisoners house. I did not search the house he was in but I did another on the Indian Ranch. It was William Whims that gave me the information. It was his Brother Clarke who was accused. Every one was suspected. Harrison a col'd man was ex'd. all were ex'd ladies & all.

Re-ex: The [house?] I arrested him in was a small shanty on the Chemainus [illegible]. I searched the Prisoner's house & found a pair of [illegible] & a [two words illegible]. I've seen the deceased use the axe. I know he was a left handed man.

John Norton, Farmer, Salt Spring Island

I knew William Robinson the deceased. He was a colored man. I remember March the time of his death. I was present when the dead body of Robinson was discovered. I was there in the company of others about 8 or 10. We found the door locked & a constable wh a pick got a peg and [shoved?] a log in. The constable then got inside & opened the door.

We saw the body of a man dead. He was sitting on the chair & the chair [upset?] & his legs on each side of it with a knife in his hand. We some blood [sic] wh had run from his nostrils. Upon looking further we saw blood on the floor under his back. He appeared to have been shot & on search we found a ball near the bed post N.E. corner. The chair & the body had tilted up backwards & the body lay wh the head across the fireplace & the Body lay flat on the back. [The last sentence and the last four words of the previous sentence were marked with a vertical line in the margin.]

There was a plate on the table with some mashed potatoes & salmon & bread in the cooking pot beside him. I think there was a cup & a fork on the right of his plate. The knife was in his hand left hand on the floor. The hand [clenched?] part of the handle & part of the blade & the [seven words illegible].

Between the shoulder blades there was a hole & it went through to the breast & came out at the centre of the breastbone. The clothes were torn in the back. The clothes were ripped 4 or 5 in [inches] in the [back?]. I saw the mark of a ball having struck the wall 4 or 5 12 or 11 in. higher than the table. The mark was as if the ball struck edgeways & glanced. I saw the ball wh I picked up before I obs'd the mark on the wall. This is the ball wh I found in the room. The wound on the breast was higher up than the one on the back 2 to 2 1/2 in. The holes wd be in a direct line wh the mark on the wall & the fire place. The clothes behind were marked wh powder where the tear was.

I know the deceased [5 yrs?]. The Axe [illegible] shown to me is the Axe of Robinson deceased. I have used it. Robinson was a left handed man. I recognize the axe by the pieces cut off at the end & also a little knot. He used to make his axe handles for himself. The axe of Robinson was not [bruised?] as this is. I recognize the axe as unusually heavy 7 lbs. & [may?] know one other man besides dec'd who used an axe of that weight. I never saw oak handle but home made — this is oak.

I was present when the Prisoner was arrested. He was arrested in his own house. I saw an auger on the floor. I picked the auger up. It was like one Robinson had got for me. He had broken one of mine & given me one instead wh this was like. I took it to the canoe with the Prisoner & took him to S S Island & when we got there it was night the auger was [missed?].

I saw Thom the Prisoner about a month before the murder. He brought a load of salmon & sold them among the settlers. I have seen him hunting deer after the murder was done. I was at his camp — he was not there. He sold one deer to the neighbours & there were two hanging up. He was well enough to hunt deer. The fish was before & the deer was after the murder. On both occasions he was in good health. I went all round the House the day we found the body — outside. I observed nothing.

xx'd by Mr Ring

I ent'd the House in Company with Sampson. Sampson told me that he missed a gun out of Robinsons Hs. He didn't mention anything else. There was a little stair & room above in Robinsons house. I missed a saw & a box & a saw & a gun. I used to be often in the Hs. The two marks I refer to are on the [illegible] one made by a saw & the other by [another?] axe. There is no mark by wh it can be distinguished whether the axe was used by a left handed man. [Jones?] handed me the auger & I put it in the boat.

Re ex'd A.G.

I don't remember seeing a box there before. I had seen a gun & saw wh I did not see when we found the body. I mean a box on wh he used to put his chair. The chair had no legs but a back & he used to raise it on the box. When we found the body it was lying on the back the chair overthrown & the box upset. The Body & chair & box were all on the side of the table towards the fire.

Adj'd to 11 tomorrow.

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3rd June 1869

Trial of Tom an Indian cont'd

Armstead Buckner Salt Spring Island
Farmer there

I knew the deceased Wm Robinson. I have chopped wood for him. Robinson had an axe to my knowledge. I sh'd know that axe if I saw it. I have seen this axe before at Robinson's Farm. I have worked with this axe as much as a week together at different times at Wm Robinsons place. Robinson the deceased furnished me with the axe to work with. I have seen Robinson use it on many occasions. He used to keep it in his house. The top of the handle enables me to recognize it. It has been partly sawn off & partly chopped.

He was a left handed man & I'm a right handed man. This is a left handed axe. The use of an axe creates a slight bend (spring) wh wh [which with] a left handed man is the opposite direction to a right handed. This shows the bend of a left handed man. The axe is put on to the handle in a different way to what is usual. I never knew anyone but the deceased put the axe on to the handle in that way. The handles of axes we buy are made of hicory. This is of oak. I recognize the marks on the top of the handle most distinctly & I swear to them. This is a six & half or seven pound axe & that is an unusual weight. 5 lb is the weight generally used. Only another man & myself on S.S.I. besides Robinson used an axe of this weight. There is no part of the iron by wh I recognize it. I can recognize it by the spring. Just before Xmas last I was helping dec'd to kill a horse & we used the axe on that occasion & that was the last time I saw it.

xx'd by Mr Ring

I was not in court yesterday during the evidence being given. No one said anything to me about the axe. No axe on the Island that I ever saw like this one of the dec'd. It was a hog not a horse we were killing. We used the axe then. I have worked for dec'd & used his axe so many differ't times that I know it [well?]. This mode of putting the axe on the handle was not good. I have worked all day with this axe few men c'd work with it so long.

Re ex'd

I recognize the shaft of the axe its general appearance & feel. I believe it to be Robinson's axe. I know the handle perfectly [well?].

Hambro Rinner

I recognize the axe shown me as the one wh I got from the Indian the Prisoner Toms house in Chimainus. I found it there on May the 5th 1869. I am a special constable. I was directed by Mr Morley the Magistrate to go & make search. I did so & found this axe. The prisoner was not there. An Indian & a white settler directed me [illegible] as the prisoners house. The house faced the Chemainus river on the Indian reserve. It was a lumber house.

It was a small house 14 x 20. There were other houses near 5 [illegible] off. Half a dozen other houses small ones. The house I searched was an unoccupied house. The prisoner was then in Custody. There were some mats & potatoes & Indian boxes & gambling [illegible]. There were no cooking utensils that I saw. There was one other box. I opened the box — it had the gambling things in.

xx'd

I got directions from the Mag what articles to enquire after & to bring them away. The box did not answer the description or I wd have brought it away. The axe was described to me as one wh an oak handle. I've seen the Indians make oak handles. An Indian of the Quamichan tribe conducted me to the house. I did not know the Prisoner before. I found the axe in Prisoners house laying down in a corner plain to be seen. A white man told me it was the Prisoners house and the Indians there at the time told me it belonged to the prisoner.

Re ex'd

Sui-Tas, Indian
Salt Spring I.'d & Plumpers Pass — [Liacthon?] Tribe

I know the Prisoner. I recollect being wh him a little more than a year ago. Tom told me he wd take me to my own Country to my own tribe. I started in the Canoe along wh Tom the prisoner. We started from Chimainus. We crossed over to Salt Spring Island. Just as we got there the prisoner said he [shd or wd?] like to kill the colored man. The prisoner left the canoe & took his musket with him & went to the house of the colored man. I got very cold in the canoe & I started for the house of the colored man too. I wanted to warm myself. When I got there I went to the fire to warm myself & the colored man Robinson was cooking at the time. Tom was sitting down a little off the fire with his musket in his hand. The colored man (deceased) then went to the table to eat what he had been cooking.

The Prisoner was standing by the fire then the Prisoner Tom told me to look round & see if there was anything of value & to take them when he shot Robinson I got afraid & went outside & just as I got outside I heard a shot. Tom the prisoner shouted to me come back & take the things but I was too much afraid & never went back. I went & peeped in at the door & saw the colored man lying on his back. He had tumbled off his chair. A stream of blood was running on the floor & also blood coming from his nose. I saw Tom take down the deceaseds musket that was hanging over the fire place. I saw him also take a saw & an auger. I saw him also take a box & a coat & an axe. Tom came out then & took the key & locked the door & started for the canoe. We started back for the Prisoners house at Chimainus. When we reached Chimainus Tom took all the things to his house. I [illegible] at Toms house 5 days afterwards & then went home to Plumpers pass. I stopped at Plumpers pass wh my friends after that for a summer & a winter.

When I peeped in I saw Robinson lying on his back & his legs on each side of the chair. It was a [illegible] chair. The Prisoner threw the key of the door of the deceaseds house in the sea. I have seen the axe since. The axe now shown to me is the one that Tom took away from Robinson's. I saw it last at Toms house at Chimainus. Toms house at Chimainus is near where they catch Salmon. Three other houses in neighbourhood of Toms house. Mostly made of mats. There are two white mens houses [but?] a great way off. There is a fence round Toms house [made because?] they plant potatoes. No fence round the others.

xx'd by Mr Ring

I had known Robinson before this about a year one summer one winter. When I was travelling backwards & forwards I always saw Robinsons house but I never was in it. I have been in the house of Robinson before the day on wh he was shot. I was just inside his house once. I never sat down in his house before the day he was killed. I'm not very old & my tribe [may?] have had quarrels wh the Prisoner's tribe. But I don't know of any. I know Prisoners wife. I have never coveted her for my wife. What wd I do wh her. I have never asked her to live with me.

Father is dead, died when I was very small. My friends have told me that my father was killed on the American side by the Klalam tribe. I don't know of any quarrel [lately?]. I don't recollect any firing of Tom's tribe on mine. I was never angry wh Robinson.

I was afraid to warn Robinson for Tom told me not to say anything at all about it. I did not look for anything. I was afraid & went outside. I wd have liked to have warned Robinson but I was afraid. I was afraid because Tom told me to tell nobody — if he told anybody he would kill him. Tom told me to look about in a low voice in our own language. I think Robinson did not understand our language. I never heard him speak it or spoken to in it.

I never told it when I went to Salt S Island I heard that the Policeman had arrested Tom. I have not heard of any reward. When I heard Tom was arrested I thought I wd go & tell all I knew about it.

I am sure I did not go in again after the shot was fired. I carried none of the things. Tom carried them all. He carried them all at once. It was Toms canoe that took us up to S S Island. Tom was my friend. I must have known him about 5 years. I have never heard any of my tribe express a wish to have any of Toms tribe killed. I have never known any of Toms tribe killed in revenge of any of my tribe. Tom carried all Robinsons things up to his house. I carried none. I am not aware that I was accused of being the murderer. I never knew that I was accused of helping assisting in the murder. I was sent to Prison because I saw Tom do it. The box was about 2 ft 6 in long by 20 in broad. There was nothing in it.

Re ex'd by A.G.

Nil

Case for the Crown

Mr. Ring addressed the jury for the Prisoner

Revenge — persecution

Call witnesses
who sold the axe to prisoner
who made the handle

No motive suggested

Witness
never known Indian Tongue

Thomas George Askew mill owner

I have had consignments of axe heads. 4 1/2 lbs is usual weight. I know the Prisoner. I sold him an axe head [three words illegible] & I believe this to be the one. It is an unusual size [so?] was the one I sold him. I know nothing of the handle. I have never known any thing against his character for [illegible]. He has always been a good Indian. As good as any I know of. The Indians make axe handles. I have quite a [few of them?]. I wd not take this to be one of the Indian made. Not made like this altho' I can hardly [tell?] [illegible] the difference. What I got of Indian handles was not like this. I've not heard of any quarrel between the prisoners tribe & the witnesses. They are always [speaking?] at each other.

xx'd

I bought the axe brand I sold the Prisoner at Fellows and Roscoe. The Douglas Axe Co I think has the brand on the axe I sold. I live at Chimainus. I did not ask F & R for this brand. I had 5 more besides that one if that is the one wh I think it is. I cannot recollect [illegible] the character of axe > 2 1/2 yrs ago.

I recognize it by the head. It is worn off considerably in the edge since I sold it. The steel is nearly all gone. I only sold that one axe. That was the only one of the size. The rest were smaller. Indians don't usually buy such heavy axes. I knew the deceased. I never saw him wield an axe. I cant remember how much Pris paid me for the axe. I think a dollar. I recollect it was beat up at the head. He objected to it on [account of it?]. It was not so much beat at the head as it is now. I do not swear that I sold the axe shown me to the Prisoner.

Re-x?

It is the only one of the size I had.

Charlie an Indian Chemainus

I see this axe and handle. I know it I made the handle myself. I made it at Toms house in Chemainus. I have seen Tom working wh this axe. I found Tom [dropping?] the handle. The Prisoners arm is weak. I never saw him using this axe. I am the Prisoners Brother the same Father and Mother. [The last sentence was marked with a double vertical line in the margin.]

Defence closed

Jury ret'd at 4.55
back at 5. 5

Verdict of Guilty

Sentence of Death by Hanging