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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Plowman [1789] NSWKR 1; [1789] NSWSupC 1

stealing - convict evidence

Court of Criminal Judicature

Collins J.A., 2 March 1789

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., 1147A[1] 

[105] - His Excellency's Precept being read and the court duly sworn.

            James Plowman, Corporal of Marines, late of Sydney Cove in the County of Cumberland, was indicted, for that he on Wednesday evening, the twenty fifth day of December last, within the twenty ninth year in the reign of our Sovereign Lord George the Third, now King of Great Britain, and with force and arms at the place aforesaid in the county aforesaid, one white linen shirt of the value of five shillings, of the goods and chattels of Edward Odgers then and there being found, feloniously did steal, to be and carry away, against the peace our said Lord the King, his Crown and dependencies.

            The prisoner, on his arraignment, having pleaded not guilty.

            Edward Odgers, private soldier, being sworn, deposes that the shirt he lost, he got from his washerwoman on Christmas Eve; that he missed it on the following morning; that he kept his linen for that night, in a basket in which were [106] some dirty things, between the side of his tent and the bedstead. That he did not at that time sleep in that hut only messing in it; only the prisoner and Corporal Wicksted lived in the hut. He received his linen from his washerwoman between 3 or 4 o'clock that evening and told the prisoner and Corporal Wicksted that he had put it in the basket between the tent and bed; there was nothing else but the basket there. They used to keep meat in it, but none was in it at that time. He put into it a white shirt and a waistcoat. There were other things besides belongings to the prisoner and other Corporals in the basket. His things were uppermost in it; he did not push any things over them. That he left that tent about 8 o'clock and was not in it afterwards; that when he left it, there was no one in it; that he did not see either the prisoner or the other Corporal again that evening. That in the morning, when he missed his shirt he made himself quite angry, never having lost any before; he supposed it might have fallen out of the basket. When he came into the hut in the morning, the Corporals were getting up; he told them that he had lost his shirt and told his washerwoman also. That he went into the convict camp, and spoke to some people and Overseers respecting it. That he suspected two female convicts (Levy and Fowles ) of having taken his shirt, as he had some time before, seen them in the rear of that tent or hut. He spoke to both the women, telling them they had both been in the tent but they both denied it to him. The Friday after he heard that his shirt had been taken to the Major, he did not hear any thing of it the day after it was lost. That his reason for suspecting [107] the two women, was, as well as having seen them sometime before about the hut, as from knowing that they were acquaintances of the two Corporals. That he never had put any linen there before then to keep there for any time; that he did not mean to keep them there all night, but forgot them when he went away.

            Mary Wright, being sworn, deposes that she washes for Edward Odgers ; that she brought home his linen to him on Christmas Eve a white shirt, one or two waistcoats, and one pair of stockings; that she carried them to the prisoners tent, hearing Odgers was there.

            The shirt produced and deposed by this witness to be Odger's shirt.

            Lucy Wood, alias Repeat, convict, being sworn, deposed that on the morning of Christmas Day, Amelia Levy came to her as she was sitting by the fire, without her hut; that she had formerly done some little work for her, and now she came to ask if she would put one shirt by [fasten], which she held in her hand; that on asking her how she came by it, and he is not positive whether she said she had had it given to her, or she had stolen it; she asked her to make it into a bed gown for her, and she would reward her with a couple of caps. That her husband, seeing the shirt in this deponent's hand, asked her, how she came by it, saying it was a soldier's shirt; Levy was gone, having kept the shirt with this deponent, whose husband bade her fetch her back, which she did. He then asked her where she got the shirt. She said she got it from a soldier for payment for laying with him and would not give it back; that she did not [108] know the man who gave it to her. That on persisting to keep the shirt, this deponent's husband would not suffer it to be kept and was taken to the Major. That Levy said to her, that she had often been with the soldier, who had given her nothing, and now if she had got something, it was no more than what was due to her. That she imagined Levy had come dishonestly by the shirt, from the circumstances by her having it, concluded betwixt her loss.

            John Wixted, Corporal of Marines, being sworn deposes that, he lives in the same hut as the prisoner; that he went to bed about half past nine that evening; that there is a bedstead in the hut; that about 8 o'clock that evening, that going to the spring he remembers seeing Levy and Fowles there, but did not see them anywhere else. That about half before nine, the prisoner came home alone. That he came to bed the same time with him; that he did not go out again that night and upon the oath he has taken, the prisoner, nor anyone else, did not bring any woman into the hut that night or day. When he saw the women at the spring, the prisoner was not with them. That he did not know that Odgers had put any linen into the basket. That he remembers being told by M. Martin, that a shirt had been taken to the Major, and that the prisoner advised Odgers to go to the Sergent Major, to learn if it was his.

            Amelia Levy, being sworn on the Old Testament, deposes that she knows the prisoner; that on Christmas Eve last, after 9 o'clock she saw him in the [109] women's camp; that she was walking up and down, and the prisoner was alone. That he came up to her and asked if she would go with him; that if she would go up to his hut and lay with him all night, he would give her a shirt; and he asked her where was her companion, Fowles and desired her to call her and bring her with her, which she did. That she and Fowles went down to the spring, to meet Corporal Plowman, who was there, and who took them up to the hut, where Corporal Wixted was. That when they got to the hut, Odgers as well as Wixted was lying on the bed; that the prisoner said to Odgers, get up and go away, this is not your hut, you only mess Levy. That he seemed to be in liquor, staggering as he got up and got out. That on Odgers going out, she asked the prisoner, for what he promised her, a shirt; that he went towards the bed, and putting his hand over picked up a shirt and gave it to her. That at this time Wixted was lying on the bed, she and the other woman were sitting on a box, as they were going to make up another bed on the ground. She laid the shirt on the box, until drumbeating in the morning, when on going away, she took it with her. That Corporal Wixted told Fowler that he could not give her a shirt that night; that if she would come to the Spring, in the morning, he would; that she went, but did not see him. That the prisoner had been once before about five months with her and had given her a shirt then. That in the morning she went to Lucy Wood, and asked her to make a bed gown, carrying it rolled [110] up in her apron. That Lucy Wood wanted her to sell it, on her refusing to do so which Wood's husband said it should be taken to the Major, which was done. That Odgers came to her about an hour afterwards, asking her if the prisoner had not given her a shirt, which she at first denied, but at last answered on which he told her, he the prisoner would give her another, for instead of his own, for he had given her one belonging to him; she said, if he would bring her another, she would have that again. She heard no more from Odgers about the shirt. That she was seen going into the hut by Alexander Freeborne, drummer, who spoke to her as she passed him, saying "What, Amelia Butterige, is that you?"

            Elizabeth Fowler, being sworn, deposes that about nine o'clock in the evening of the twenty fourth day of December, Amelia Levy came up to her hut as she was just getting into bed, and told her there was a shirt a piece for them and they might as well get them at a [step].That Corporal Wixted would give her a shirt; that they went down to the spring together, where Levy had some liquor given to her by someone; that she gave her some of it; that then Levy and she went up to the hut, where the two Corporals were, and no other person. That she was to have had a shirt, but did not get one; that she saw a shirt in Levy's hand in the morning when they came out. That Odgers came to her in the morning, to ask her if she had got his shirt. That Levy went into the hut first, and she heard no one called to her or Levy.

            [111] The prisoner, being put on his defence, denied ever having given the shirt to the woman; that he saw the washerwoman give Odgers his linen, and saw him put it into his tent. That had he wanted to give away a shirt, he would have given his own. That he has been 16 years in the King's service, and has lived without blemish.

            Not guilty                                                         David Collins

                                                                                    Judge Advocate.


[1] In the first ten years there were numerous occasions when the criminal court acquitted convicts and free settlers despite the fact that the Judge Advocate framed the original charge and prepared the evidence for the prosecution. See also, for example, R. v. Pawson, 1795 below. This case also reveals a casual attitude to prostitution between soldiers and convict women. See Castles, Australian Legal History, 61.

We are indebted to Lynette Hitchell for transcribing this case record.


Published by the Division of Law, Macquarie University