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

R v Best [1826] NSWSupC 40

receiving stolen goods - criminal informations - indictments - arrest of judgment

Supreme Court of New South Wales

Forbes C.J.,  7 July 1826

Source: Australian, 8 July 1826

 

Anthony Best stood indicted for receiving stolen property, knowing the same to have been feloniously stolen.[1 ]

Israel Chapman went to prisoner's house with a search warrant on the evening of the 29th of May last.  He was accompanied by the chief constable, a constable, and Rae, who was handcuffed.  Prisoner was asked if he had any pieces of silk handkerchiefs, or any remnants of cloth.  Prisoner, in reply, said he had, and called to his house-keeper, who said she had left the things on a chair in the bed-room.  Witness and the chief constable, with prisoner, proceeded to that apartment, and there found nine pieces of silk handkerchiefs wrapped up in another coloured handkerchief.  Some cloth was also found in a box in the same chamber.

Cross-examined - Best, on saying he had received the property from Rae, could not have known at that time that Rae was in custody.  Rae and the constable were stationed at the back part of the premises on the outside.  Rae said he had not sold the things to Best, but had got money advanced on them. - Knows that many individuals in Sydney are in constant habit of lending money on goods.

Mr. Francis Mitchell examined - The cloth now before the Court resembles in point of tetuxre [sic] the cloth stolen on the 28th May, the selvage has been taken off the cloth - has not the slightest doubt as to the identity of the handkerchiefs - they are his property - the value of this article is 45s. each piece, at prime cost - knows there has been only two boxes of this description of handkerchief ever imported into the Colony - they are of a peculiar quality.

John Ray, sworn - Deposed that a man named Napper,[2 ]came to his house between the hours of six and seven o'clock, on the morning after the robbery of Messrs. Rapsey and Mitchell's stores, and brought with him a quantity of jewellery, aud [sic] some pieces of handkerchief - Napper asked deponent to dispose of them for him - witness proceeded with six watch chains, some seals, and other jewellery to the house of the prisoner, and asked him to buy them - said he would if the trinkets were gold - deponent said they were - prisoner said he must be satisfied of that - desired witness to wait a few minutes, until he had the things "tried" - prisoner then went out - he shortly afterwards returned, saying, that the trinkets were not gold, and therefore would not buy them - this occurred between 7 and 8 o'clock in the morning - witness returned home, where he found "Napper" waiting, to whom he related what Best had said - about an hour after, witness again proceeded to Best's house, taking with him six pieces of black silk handkerchiefs - prisoner purchased them for £6 - was not in the habit of dealing with prisoner in the way of trade - he knew witness to be a carpenter - the bargain about the handkerchiefs was struck in the bed room - afterwards took some cloth to prisoner's house - the same property received by prisoner from witness, is now before the Conrt [sic].

Cross-examined. - Was taken up to the Police-office, professed on an examination there to tell the whole truth - and did so.  Did not conceal from the knowledge of the police any part of the property stated to be stolen on that occasion.  Is aware that sundry articles were found on his premises, which he did not disclose to the magistrates.  Does not know where they were planted.  There were some loose flag stones in witness's premises.  Witness on speaking to the prisoner about the property, told him that he was the agent of some other person.  Did not go to Best's house with a view to raise money by way of loan on the goods.  Never told Chapman that the goods were left with Best, but not sold to him.  If Chapman had sworn so, he must have sworn falsely.  Never told any other person the same.  Has said to no one individual that he pledged the goods with Best, and had not sold them.

Re-examined. - Witness told prisoner that the goods were not his own when he brought them to him.  Prisoner said he would not trust a second person in the business.

Mr. James Underwood examined as to the probable value of the cloth - supposes it worth from 35s. to 42s. per yard.

Here closed the case for the prosecution.

Thomas Jones, a constable, deposed to being on duty in the gaol, on the 5th last month, when Ray, (a witness examined in Court on this case,) who was then in custody, told him that he would be revenged of Best, for discovering the property, and that he would convict him if it was possible.  Peter Callaghan is the constable who was handcuffed to Ray on searching Best's house - recollects Ray saying, that the goods were not sold to Best, only left with him.  Chapman the constable was present.

Jane England was offered by Ray, a pledge, on which, he wanted 20 dollars - thinks the handkerchiefs offered, the same as before the Court - had no money in the house at the time - advised Ray to go with it to Anthony Best.

-- Burgess - heard the prisoner and Ray conversing together, about some blue cloth, and some handkerchiefs, - prisoner said he had only £7 10s. in the house - Ray said he had bought the things at Lyon's auction, wanted money to pay the auction bill next day - understands from their conversation, that the money was intended to he had, merely as a loan.

For the prosecution, -

Dunn the Chief Constable was called, who stated, that he would not believe Burgess, who is a bad character, on oath.  Guilty.

 

 

Forbes C.J., 19 July 1826

Source: Australian, 22 July 1826

 

In the second case in which an arrest of judgment was moved, was that which was made on behalf of Anthony Best, who had been found guilty of receiving goods knowing them to have been feloniously stolen.  The principal, a man of the name of Napper, had been previously convicted, and Best had been indicted as an accessary [sic] under the statute which subjects receivers to fourteen years transportation.  Napper had been found guilty of stealing goods, the property of Peter Hill Rapsey.  On framing the information against Best, it was discovered that "Hill" was not the prosecutor's name, but that it should have been written "Hitt".  The word had been conjectured that Hill was the proper name, and the word had been then altered from Hitt to Hill by lengthening the "T's" and adding tails to them - the cross through the original "T's" still remaining.  In reciting the Record of Conviction in the Information, this mistake was noticed.

The technical objections then taken on behalf of Best were - first, that Napper was entitled to have judgment arrested, on account of an ambiguity on the face of the Record, it not appearing whether the above mentioned name was Hitt, Hill, or Hilt, and that then Best would take advantage of the condition of the Principle; and secondly, it was contended that if Napper could not avail himself of this ambiguity on the face of the Record, that Best could take advantage of the mistake in the name, as he, on account of his being able to contravert the guilt of the principal, was placed in the same situation as if he had been tried with Napper, and during his trial the mistake had been detected.  These objections were overruled by the Chief Justice; who stated that, with respect to the first, the Jury who tried Napper, it was to be presumed, were aware of the alteration or ambiguity in the Information, and had found a verdict which was consonant with a view of all the facts of the case as connected with it.  The second objection was disposed of on a similar principle; and Best received his sentence of transportation for the term of fourteen years.

After these decisions it will not, we think, be pretended that "the Colony is delivered up to the craft of subtle Lawyers," or that "the subtleties of law in our new Court of Justice have led to the escape of hardened offenders."  Had there been a disposition in the Court to encourage escapes through the subtleties of the law, a more favorable opportunity could not have occurred than either, or both of the above cases presented.

 

Notes

[1 ] This trial was also reported by the Sydney Gazette, 8 July 1826.

[2 ] Napper was tried and convicted of burglary on the day before this trial (6 July 1826): Australian, 8 July 1826; Sydney Gazette, 8 July 1826.  His sentence of death was respited to transportation for life at Norfolk Island: Historical Records of Australia, Series 1, Vol. 12, p. 517.

 

Published by the Division of Law, Macquarie University