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

R. v. McFadden [1817] NSWKR 4; [1817] NSWSupC 4

cattle, feloniously killing and stealing

Court of Criminal Jurisdiction
Wylde J.A., 6 October 1817
Source: Sydney Gazette, 11 October 1817[1]

           William McFadden was indicted on a charge of feloniously killing and stealing in the district of the Nepean, a heifer, the property of Donald Kennedy, on the 15th ultimo, and found Guilty.  The leading circumstances of the case were as follows:- The prosecutor was informed upon the 16th that the explosion of the musket had been heard in the direction of the place where his cattle grazed; and he in consequence of the information repaired thither, accompanied by another person whose name was Sullivan.  On arrival at a spot 2 miles distant from his house, and within 100 yards of the place from which the report of the musket had proceeded, he found a bag of meat, the appearance of which corresponded with time of the report.  This induced the belief that the person who had deposited the bag could not be very distant; and he therefore redoubled the diligence of his search, which terminated in finding the prisoner at the bar creeping away from behind a rock upon his hands and knees, to avoid observation.  The prosecutor, who was armed, then took the prisoner to his house, together with the bag, which was found also to contain a handkerchief, known by Mrs Kennedy to be the prisoner's property.  Several stains of blood appeared also upon the prisoner's jacket, which likewise bore a mark that had been apparently or rather evidently occasioned by the pressure of a rope made of the stringy bark, across the shoulder.  The hide of the slaughtered animal was likewise found near the place where the prisoner had been discovered and apprehended, and was identified to be that of the heifer charged in the indictment.  This identity was however not material to the conviction, as by the statutes 14 and 15  Geo. II it is provided, that "if any person shall feloniously drive away, or in any other manner feloniously steal any ox, bull, cow, calf, steer, bullock, heifer, sheep, or lamb; or shall wilfully kill any such with a felonious intent to steal the whole carcass, or any part thereof; or shall assist or aid in committing any such offence, he shall be guilty of felony without benefit of clergy."  It therefore rested with the accused party to have proved that the heifer was bona fide his own property at the time of the killing, or that he was commissioned by the owner to that effect; which, it is at the same time necessary to observe, would in this colony have brought both the parties under the operation of the proclamation issued by Government under date the 20th of May, 1812, which for the security of persons possessing stock of that description, renders such slaughtering highly penal, unless by persons duly licensed for the express purpose.


[1] See also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ779, p. 29 (no. 35).

Published by the Division of Law, Macquarie University