Bega Gazette and Eden District or Southern Coast Advertiser
January 13th, 1868.
(Before G. B. Simpson, Esq., Chairman, and W. R. Templeton, Esq., Crown Prosecutor, Fraser, Esq., Clerk of Arraigns.
ARSON.
Thomas Cunningham and William Alexander were charged with having
George Philben at Cathcart on the 2nd November last. The prisoners 
pleaded not guilty.

Mr. Manby appeared for the prisoner Cunningham. Alexander was undefended. 
The Crown Prosecutor, in opening the case, drew the attention of the jury to the extreme difficulty there was in finding direct proof in  cases of arson and that they (the jury) would have mainly
to rely upon circumstantial evidence. In the case now before them, it would be clearly proved that the prisoners had had a dispute with Mr Philben, nd made use of threatening language : further, that footmarks
were discovered at the scene of the fire which corresponded with the boots worn by one of the prisoners. and also that the nails of the boots resembled certain marks and scratches on a stone, which would be produced in due course.

August Zoellner, being sworn, said : I am sargeant of police stationed at Bombala. I arrested the prisoner Cunningham on the 6th December last on the charge of having set fire to Mr Philbens house on the 25th November last. The prisoner said nothing of the charge. I arrested the prisoner Alexander on same morning, aboiut 8 miles from Cathcart, at his camp. I charged him with suspicion of having set fire to Mr Philbens house. I took him to his camp, as he wished to change his clothes. He made no answer to the charge, but said he would not walk an inch, and that he must have the use of a horse. I then brought him to Cathcart, and conveyed him in the company with the other prisoner to Bombala. Constable Walsh had charge of Alexander, and I had custody of Cunningham. Some short distance from Cathcart, Cunningham remarked that it was not near to b ???????? as that ????????????
Police Magistrate, alluding to the escort murder and robbery in Queensland, When within three miles of Bombala Cunningham said, "How would it be if I and the other chap made our escape." I said they would not get the chance. He then said, "I mean how would it be
with yourself if it should happen," to which I replied, it would be a bad job, and he conversation dropped. I saw Mr. Philben's house the day after the fire; it was smouldering then. The servant ponted out some foot-tracks. I traced then along to a fence. I also saw
a stone wih scratches on it, as if from the nails of a boot, and I compared these marks with the nails on Cunningham's boots, am found a correspondence be tween them. Cunningham, in the course
of conversation, said that Mr. Philben was a wretch, and had ruined him. 

By Mr Manby : The boots now produced I took from the prisoner Cunningham when he was in the lock-up at Bombala, (Mr. Manby here requested the witness to show the stone and boots to the jury and to point out any similarity of marks or connection between
them ; jt was about a hundred yards from Mr. Philben's house that I found the stone. The prisoner's boots have brass nails on the sole. There were no marks on the sole as if brass nails had
grazed it. The prisoner wag arrested
without warrant.

By the Crown Prosecutor: There was inquest held at Bombala after the fire. The prisoner Alexander was summoned, but did not attend.

George Philben, sworn : I am a road superintendent, and reside at Cathcart. In November last I was owner of a dwelling house situated at Cathcart. The house and  furniture I valued at £300,
and they were uninsured. On the 19th November I left home, and returned on the 27th, when I found my house totally destroyed by fire. My servants Jived in a detached house. I know the prisoners
at the bar. Cunningham is a contractor, and Alexander was a labourer in his employ. Previous to the fire Cunningham gave up his contract because I found fault with his work. He said at the time
that the Government gave no encouragement to working men, and he would be as well off if he got his living as Clarke
did. He also said, that if I paid his men, he would agree to give up the work. This conversation took place when Cunningham complained to me about the difficulties he was in with his men. I asked him if he had heard that rny house had been set on fire. He said yes, if it
was set on fire. Sergeant Zoellner first showed me the stone now produced in Court.

By Mr. Manby: The marks on the stone may have been produced by any
hard material, such as an iron rake. My servants had free access to the house in my absence. I had a gun and a flask of powder. I afterwards found the barrel of the gun, but the stock was burnt.
My house was about ten to fifteen chains distant from Featherstone's.
Cunningham had been to my house several times after his money. He is not paid yet. When he used the words, if it was set on fire, he spoke as if in doubt. It was when 1 found fault with his work
that he made the remark, that a man might as well get his living as Clarke had done than trust to the Government.

James Crotty, sworn: I am in Mr. Philben'c service at Cathcart. The
house I lived in is about 25 feet from that Mr. Philben occupied before it was burnt. My wife and I were at home the night the fire occurred. I know the prisoner Cunningham, and heard him say at
Featherstone's that he was very sorry to hear Mr. Philben's house was burned. I heard no explosion. I saw the footmarks near the house, and they appeared to be such marks as would be left by a person in running, because, they were nearly four feet apart. 

Catherine Crotty, sworn: I am the wife of the last witness, and in the employment of Mr. Philben. On Monday night, the 25th November last, I was awoke by the crackling of fire, and on looking out I saw Mr. Philben's house burned to the ground. The last time I made fire in the house was on the previous Saturday. I have known the known the prisoner Cunningham for about two years. He was at my place the day before the fire. He had on a pair of boots similar to those produced.

By Mr. Manby : When I went into Mr. Philben's house on the Sunday  ?????????????????  examined it the night previous. I went to bed about 
10 o'clock the same night. The wind was not blowing in the direction of Mr. Philben's house. I went out on Sunday and left Cunningham, an old man, and my husband in the place.  When I returned, they were all gone except my husband. 

James Craig: I am barman to Mr. Featherstone. I saw the two prisoners
at our place on Sunday evening, November 24th, about 7 o'clock. I have heard Cunningham say that he had been very unfairly dealt with by Mr. Philben.

Charles Reardon, sworn, said: I am a labourer, and was in the employ of the prisoner Cunningham on the 8th November last. I had worked for him nearly eleven weeks. I recollect seeing  Mr. Philben and Cunningham together on that day. When 1 saw Cunningham again he said, " What do you think of that b------ ; he has laid out this line, and
now, when he finds it partly cleared, he wants to correct his errors at my expense." I don't recollect what I said, but I sympathised with him. Mr. Philben came back in about 40 minutes. He came back with a man named Doyle. Mr. Philben was measuring the width of the road, and Doyle was helping him. Cunningham said to Mr. Philben, " You might as well put your hand in my pocket and rob me ; a man may as well turn bushranger as endeavour to gain an honest livelihood by industry." He then said to Mr. Philben, " You pay these men the money I owe them, and I'll be settled with you at the present time, and seek redress in some other quarter," or words to that effect. Mr. Philben then
said, " What amount of money will pay these men." Cunningham said about £70. Mr. Philben said he thought that amount of work was not done. After Mr. Philben left, Cunningham told us to knock off ; it was no use trying to do honest work ; he might as well turn bushranger. When we were going to the camp, Cunningham said, " Charley, what
do you think of that villain, or what does the rascal deserve." I said, if I was in the county I came from (Limerick) and did such a trick as you represent he has done you, I would not give a sixpence
for his head in the morning. He answered, " Well, if the villain means what he says, I'm not a man to be come over so easily, and by God I'll have revenge of the b------ , or be level with him if it were in seven years." I remember being at Cunningham's house on the llth November. He said, "Charley, as you know the books, you had better take them over to Mr. Philben's, and fill in some of the men's time that is not in the book." We went over together, aud in crossing the paddock we saw Mr. Philben's horse hobbled. " That is the b------'s horse," remarked Cunningham, " and by God if I were to turn bushranger, I would take him or hamstring him." I remember Captain Battye holding an enquiry at Cathcart on the 5th December. Cunningham was there. Myself and many of the men were subpeened. Outside I met Cunningham,
and he asked me to have a nobbier. Constable Walsh called me out, and
when I returned Cunningham wanted to know what he was after. I gave him no answer. He told me I ought to go and tell the men what to say when called upon, as you know they are ignorant fellows. Give the police as much trouble as you can, and if the house was burnt
down, the b------ deserved it.

By Mr Manby : I have been in the ?olice force! I resigned in disgust;
I acknowledge I was warder at Braidwood Gaol at the time Clarke escaped. I was dismissed for drunkenness. On the night of the enquiry I had a row with Cunningham at Featherstone's. It took place before I gave my evidence at Court. I never make use of obscene or vulgar language. 1 did not use the word b------ in the row I had with Cunningham.

By prisoner Alexander: After the fire I heard you say, that if you were going to burn a house, you would take a piece of fuse and stick a match with the composition upwards, and put another match aat the top of the fuse, placing the whole in the thatch that there would be no fear of its missing fire.

William Doyle, sworn ; I know the prisoner Cunningham, and remember the fire at Mr. Philben's. I heard Cunningham say on the 9th November Mr. Philben had served him a nice trick, and he would be revenged on him if he waited seven years.

By Mr. Manby ; This occurred after a dispute between Mr. Philben and 
Cunningham. The latter was much excitedat the time. 

Thomas Cunan sworn: I am lock-up keeper at Bombala. I received the two
prisoners into my custody on the charge of having set fire to Mr. Philben's house at Cathcart. I had another prisoner, John Ronald McDonald, in the lock-up at that time. I placed Alexander in a
cell with McDonald, and Cunningham in a cell by himself. I had instructions to keep the two prisoners in separate cells. On the 7th I placed Cunningham in the same cell with McDonald, and put Alexander in a cell by himself. On the morning of the 7th, between 3 and 4
o'clock, I heard a conversation between two prisoners. One of them said, if one of my friends would bring me a revolver in the middle of the night and put it through the window, I could easily present it to him in the morning (meaning myself), and put him into the cell and
make my escape. These expressions came from the cell where McDonald and Cunningham were confined.

John Ronald McDonald, sworn: I was in the Bombala lock-up, and confined in the same cell with the prisoner Cunningham, and he told me to warn Alexander not to say anything in court, but to keep his guts in, or he would convict them both. He also said that if one of his
friends would put a revolver through the bars, he would point it at the lock-up keeper in the morning, put him inside, and then walk out. I also heard Cunningham say he was sorry Mr. Philben was not in the heart of it. Cunningham said that if they were committed, he would get bail for both of them; he would then get Alexander out of the
way, and he himself would appear innocent. On another occasion Alexander said to Cunningham, there is only one man that I am afraid of, and if lie speaks the truth I sm settled; but if I get bail,
I will put him on one side. Alexander said, I curse myself for having had anything to do with Cunningham.

By Mr. Manby: I am on remand, and have been under sentence. I have been tried more than once. All the documents now produced are in my band writing. I sent them to Cunningham, and told him my evidence would extricate him. I also wrote to Cunningham to tell him not to let his lawyer plead for D??sy, but to keep him out of it, and all the blame would fall upon him.

By Mr. Templeton: I gave evidence in he Court at Bombala in reference to this case.

Mr. Manby, in his address to the jury, said that the Crown Prosecutor had spoken of the difficulty there always was in establishing a case of arson, and that circumstantial evidence was generally all
that could be adduced. The prisoner Cunningham resides at Cathcart with his family, and the very evidence he could have produced in proving an alibi — that of his wife — was inadmissible by law. He particularly wished to call the attention of the jury to the amount of credibility with which the evidence of some of tbe witnesses for the prosecution should be received. One witness (McDonald)
had professed himself as a friend and sympathiser, and yet when called upon had shown himself ready to swear to anything, or any matter that was suggested to him. Originally a convicted felon many times under sentence, and now on remand on a serious charge, such testimony should be received not only with great caution, but absolute distrust ; and so with that other respectable witness Keardon. His Honor would no doubt point out to the jury the necessity of weighing well the value of the evidence they had heard, and he confidently left the case of the prisoner Cunningham in their hands.

His Honor summed up, and said there could be no doubt but the evidence
they had heard in reference to this case should be considered very carefully. There was every proof of disputes between Mr Philben and Cunningham, who had allowed himself to be betrayed into an intemperance of language which had told materially against him. But the testimony of those witnesses for the prosecution was so equivocal, and their truthfulhess, so easy of impeachment, that he felt sure
the jury would not hesitate before convicting on such evidence.

The jury retired for short time, and brought in a verdict of not guilty, when the prisoners were discharged.