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Brotherston grandfather acquitted of murder in 1930

The circumstances are eerily similar: Two members of a well-known Vancouver Island family acquitted of murder almost exactly 80 years apart. Last Friday, Ken Brotherston Sr.

The circumstances are eerily similar: Two members of a well-known Vancouver Island family acquitted of murder almost exactly 80 years apart.

Last Friday, Ken Brotherston Sr. was found not guilty of the second-degree murder of drug dealer Keith Taylor. In June 1930, a jury found Brotherston's grandfather, David Brotherston, not guilty of the murder of farm labourer William Walker.

David Brotherston, a father of five, had been born in Scotland and was a veteran of the First World War. He bought land and was building up his farm on Duke Road at Albert Head.

According to a news report in The Daily Colonist, Brotherston's wife Vera was in hospital awaiting the birth of a child in the first week of April 1930. Brotherston, who was obliged to work outside his farm, had left the house and four youngest children in the care of their eldest child, 14-year-old Hilda.

On April 7, Vera came home with a new daughter. A few days later, she told her husband that "Hilda had told her of being seduced by Walker," the Colonist reported.

At trial, defence counsel Stuart Henderson said Brotherston had phoned the Provincial Police, asking them to send an officer to arrest Walker.

"Fearing that Walker might make his escape before being arrested, Brotherston had gone over to see that this did not happen. He had taken a loaded shotgun with him, and this, the defence argued, was justifiable because of the character of Walker who had served a term in penitentiary, and because of the desperate state of mind Walker might be in when facing arrest on so serious a charge," the newspaper reported.

Walker was a powerfully built man and, like most ranchers, had a gun and ammunition in his house, the defence noted.

Brotherston, the only witness for the defence, testified that he entered Walker's house and they had an argument about his daughter.

Walker turned white and stepped to one side, saying, "No, no," then changed his mind and took a swing at Brotherston, first with his right arm, then with his left arm, which struck the barrel of the gun, the newspaper reported.

"It was then that the shot went off. Walker had said 'I'm shot' and Brotherston had dropped the gun and supported Walker, easing him to the floor," the Colonist reported.

Brotherston ran to neighbour Frank Waide's house to tell him Walker had been shot and to telephone for a doctor.

Waide, who owned the farm and rented the cottage where Walker lived, helped Brotherston lift the injured man onto a bed. Walker's stomach was badly torn by the discharge of the 12-gauge shotgun.

Waide testified that Walker said to him, "Oh, Mr. Waide, I am dying." He also murmured, "I didn't think a friend would do this."

Waide told the court he asked Brotherston what had happened. Brotherston replied that they'd argued about his daughter.

"I told him not to tell me anymore and not to say anything until he had secured counsel," Waide said.

Mrs. Waide went to the cottage with towels to try to staunch the blood from Walker's wound. She recounted her conversation with the dying man at the murder hearing.

"I said, 'Billy, how did it happen?' He said 'He walked right in and said, 'You know what I've come for' and shot me through the stomach.

"I said, 'Why did he do it?' and Billy replied, 'It was over that girl of his."

"I said, 'Have you done anything to her?' and Billy replied, 'No, I only gave her two or three little presents.'"

Walker repeated that he was dying and asked Mrs. Waide to write to his father.

Const. A.G. Carmichael testified that he took the dying man away in an ambulance. Walker died as the ambulance turned the corner to the hospital.

Const. H.P. Hughes told the court that he asked Brotherston what happened, but Brotherston said nothing. Hughes charged him with wounding Walker and warned him that anything he said could be used as evidence against him.

"Brotherston said, 'You had better take the gun, you will need it," and handed Hughes a Winchester pump action shotgun," the Colonist reported.

Hughes took one empty cartridge case and two loaded shells from the breech and magazine.

Brotherston made a statement to police and was taken to the city jail on an open charge. An inquest was held the next day and Brotherston was remanded on a charge of murder.

Defence counsel Stuart Henderson did not dispute that Walker was killed by a shotgun held by Brotherston. But he asked the jury to acquit Brotherston on the grounds that the gun discharged accidentally. Henderson argued Walker had struck the gun barrel, which caused the gun to go off.

Crown prosecutor A.M. Johnson said Brotherston's conduct was inconsistent with the theory the shooting was accidental.

"The fact that Brotherston had loaded the gun before going to over to Walker's place had not been explained in a satisfactory manner," he said.

The jury did not agree. They deliberated for half an hour before reaching a verdict of not guilty on June 5, 1930.