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

R v Cable [1826] NSWSupC 39

stealing, horse - felony attaint - convict evidence - convict service, assignment to spouse - married women's legal disabilities, wife of convict - Crown mercy - death recorded - capital punishment - sentencing discretion

Supreme Court of New South Wales

Forbes C.J., 6 July 1826

Source: Australian, 8 July 1826

 

Charles Cable was arraigned on an indictment, charging him with feloniously stealing a mare, the property of George Seymour.[1 ]

The prosecutor deposed, that on the evening of the 25th of May last he deputed a man servant of his to turn a mare into the paddock adjoining the house, where were three other animals.  The mare being subsequently missed, was discovered to have been offered by the prisoner for sale, to a man named Ellison.   She was found in Ellison's paddock, where the witness was enabled to identify her as the one stolen from his paddock a few days before.  The animal was of a bay colour, rising four years old; had not been in foal.  She is now outside the Court-room doors.

Cross-examined --- The paddock was insecurely fenced, it was possible for the mare to have strayed.  Will swear that he never sold, nor gave instructions to any one to sell her.  Never had any conversation with prisoner relative to the mare.  Did not bargain or commission him to sell her.

Rev. W. Walker examined --- Met the prisoner on horse-back on the 24th of May.  Offered the mare on which he rode to witness for fifty guineas.  Some conversation took place on the subject in the way of dealing.  Prisoner offered to have cattle in exchange for the beast.  The animal was shewn to Mr. James Hassel, who agreed to give prisoner forty-five pounds for her.

Mr. James Hassel was examined in support of the last witness's testimony.

Ellison was offered the same animal, as deposed to by several witnesses, for fifty pounds.  Knows that Mr. James Hassel purchased her.

The defence set up, was that the prisoner had been commissioned by prosecutor to sell the animal.  No witnesses were called.  An objection was taken on behalf of the prisoner.[2 ]  The information set forth the animal as being the property of George Seymour.  The prosecutor in this case being a prisoner of the crown, transported to this Colony, and one whose sentence of banishment not having expired, it was contended could be possessed of no property; for if in a civil case he could not acquire property, it was clear that in a criminal one he must be supposed to possess none.

The Learned Judge observed, that he did not feel disposed to give a decision at the moment on the important question then raised on behalf of the prisoner; but would reserve the objection for a special hearing on a subsequent stage of the proceedings, when it might be raised for the advantage of the prisoner.  As the case stood at present, his Honor would be sorry to impede the substantial ends of justice by questions of that nature, but when they were put to the Court, it behoved the Court to notice them, with that degree of scrutiny usual in Courts of Law in England; and after mature deliberation, decide upon them.  For the present the case should go on its facts in the Jury.  The latter found a verdict of guilty.  Remanded.

 

Forbes C.J., 19 July 1826

Source: Australian,  22 July 1826

 

Two motions in arrest of judgment, in criminal cases, were disposed of on Wednesday last.  The grounds relied on, in one instance, were that the prosecutor being, as he acknowledged at the time of his giving his evidence, a prisoner of the crown, could ot ben [sic] possessed of property; and therefore, the prisoner Kable, who stood charged with stealing a horse belonging to the prosecutor, could not be convicted.  The property, it was contended, in Kable's behalf,[3 ]should have been alleged to be the property of the King.  The Chief Justice, in deciding against the motion, in arrest of judgment, took a very humane view of the condition of persons transported to the Colony.  They were sent, he said, for reformation, as well as punishment; and it would be very hard indeed, if it were decided that those, who had obtained a remission of the severities of their sentence, though they might not come within the provision of the Act which gave prisoners whose sentences had been wholly or partially remitted, the right of holding goods, chattels, &c. - had no remedy against the invaders of their property.  Many, as an inducement to good conduct, were assigned to their wives; and he should be sorry to say, that the fruits of their labours should not be as fully secured to them, from unlawful invasion, as any other class of people.[4 ]  The Chief Justice added, that without further entering into that part of the motion, he should dispose of the case, and, in a manner, as he thought, which would best meet the ends of substantial justice.  It was a point of law that, whenever the incompetency of a witness, on the ground of conviction, was objected to, in order to have the benefit of the objection, the record of the conviction of the witness should be produced by the party making the objection.  This had not been done in the present instance.[5 ]  He should therefore adhere to the point of law, and overrule the motion in arrest of judgment.  Sentence of death was not passed, nor recorded, because, as we understood his Honor, it was in the contemplation of the Legislature to place persons convicted in the Courts of the Colony, for the first time, in no worse condition than prisoners were who were convicted for the first time in England - meaning by this, that the same commutation of punishment, in capital cases, which was allowed in England would be also allowed here.[6 ]

 

Forbes C.J., 4 September 1826

Source: Australian, 6 Sept 1826

 

The Chief Justice appeared in Court this morning at ten o'clock, and proceeded  to pass sentence on -

Charles Cable, convicted of horse stealing.  Judgment of death recorded.[7 ]

 

Notes

[1 ] Cable (or Kable) was the "son of a very old colonist" (Monitor, 7 July 1826).  The reference was, no doubt, to Henry Kable, a first fleet convict and later merchant.  The surname was usually spelt Kable, as did the Monitor on 7 and 28 July 1826; and the Sydney Gazette in its report of the case on 8 July 1826.

[2 ] Mr Rowe acted for the defendant (Sydney Gazette, 8 July 1826).  The Gazette gave more detail than the Australian: the prosecutor, the supposed owner of the animal, had confessed, in his examination, that he was sent to New South Wales convicted of felony.  He had no licence from the government, and was assigned to his wife. Rowe said that "according to all ancient and modern authorities, persons in his situation were not capable of acquiring property, until the blood was purged either by pardon, or by the expiration of the term for which they had been sentenced - they were, in fact, civiliter mortuus.  In civil cases, persons so circumstanced, could neither sue, nor be sued; this rule, he contended, equally governed criminal proceedings, and on that ground, he submitted that the indictment could not be supported."  Civiliter mortuus means civilly dead.  Rowe was wrong to suggest that attainted people could not be sued; they could be sued but could not sue.  See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 49-50.  The Attorney General replied that there had to be evidence of attaint, and that it was also possible that he held a qualified property in the animal.

For other attaint cases, see Hart v. Rowley, October 1825, footnote 1.  See also B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, chap. 2 on the development of the law of attaint.

[3 ] The Monitor, 28 July 1826 gave a more complete summary of the legal arguments: "Mr. Rowe claimed an arrest of judgment on the part of the prisoner, on the ground that by the admission of the alleged owner of the goods and chattels, for the stealing of which the prisoner had been convicted of felony, he (being himself a convict attaint) was himself incompetent to hold such property - and this was laid down in the best authorities.  In Barnwell's and Alderson's Reports, the well-known case of Bullock, v. Dodds, this principle was fully borne out.  The Chattel should have been charged as the property of persons unknown, or of our Sovereign Lord the King, because although the prosecutor may acquire property, Lord Holt held that he cannot retain it, inasmuch as in the event of purchase it passes from the vender to the Crown - Chief Justice Abbott was of the same opinion, and therefore he contended the prisoner was entitled to an arrest of judgment.  Mr. W.H. Moore in the absence of the Attorney General conceived that there was a material difference between an action of civil right and a prosecution for felony.  The fact of the incompetency of the prosscutor [sic] had not been proved beyond a vague acknowledgment made by himself - proof, had it been required, might have been easily obtained by the Indents - it was, in his opinion, competent for a prisoner to hold a qualified or special property, not vesting in the Crown, without an inquest of office being held.  In this instance the Crown had not claimed a right in the property and therefore it was well laid."  Indents were records of conviction which came on the ship with the convict.

[4 ] The Monitor's version of this (28 July 1826) was: "The Government had in a recent order evinced a wise and benevolent disposition in assigning prisoners to their wives, thus enabling them, if their characters were not seriously involved, to hold a property between them." The common law rule was that the wives of attainted convicts had the same legal rights and obligations as men and unmarried women.   This enabled them to live independently even if their husbands had no legal capacity.  Other married women, like attainted convicts, had limited legal capacities.  Attaint did not attach to all convicts, but only to those sentenced to death for felony. See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 66, 70.  See also In re Cave, August 1826.

[5 ] The Monitor's report stated "With regard to the production of the record of conviction, it was a question that had been before moved and decided, not in the hurry of assize, but in a solemn manner, by a convened assembly of the Judges.  By mere analogy to the case quoted, he should say, it was necessary to go to the strict proof of the incompetency - he must therefore rule that it was necessary to prove more strictly the prosecutor's incompetency."

[6 ] The Sydney Gazette, 22 July 1826, clarified this.  The Chief Justice said that he "would not, however, pass sentence at that time, as he was aware that it was the intention of the Legislature to make a distinction between persons convicted in this Colony, for the first time, of offences which would subject them to transportation, and persons convicted a second time, or who had been transported from England.  He therefore gave the prisoner the benefit of the regulation, which he knew was about to be made, and ordered him to be remanded, to be brought up for sentence at a future day, while, in the mean time, the imprisonment he would suffer would not be any greater hardship than if he were then sentenced according to the existing laws."

[7 ]Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University