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

R v Edwards and Holt [1826] NSWSupC 53

burglary - death recorded - sentencing discretion

Supreme Court of New South Wales

Forbes C.J.,[1 ] 16 August 1826

Source: Australian, 19 August 1826

 

John Edwards and William Holt were capitally indicted for a burglary.[2 ]  It appeared in evidence, that between the 1st and 2d hour of the morning of the 15th July last, a cry of "murder" reaching the ears of a sentry who was posted in flank of the house occupied by his honor the Lient. Governor in Upper Pitt-street, and which did not seem very far distant caused the man momentarily to quit his post and endeavour to ascertain the cause of this appalling cry.  He ran towards the spot from whence the alarm appeared to proceed, and soon got within a few paces of the tenement of an inhabitant of the same street, named Smith, who was shouting aloud for assistance, and exclaiming, in rather quaint terms, that he had been robbed and "murdered."! - However well inclined the soldier may have felt, to give credit to Smith's affirmation of having been robbed, he could scarcely credit that of the man being murdered, as not even during the battle's deadliest heat, when comrades fell around "like leaves in wintry weather," had the sentry known a murdered man to possess so full and distinct a use of his "parts of speech," - this consideration did not, however, appear to deter the sentry from his first resolution of becoming an auxiliary to the soi disant murdered one.  He was proceeding to enquire about the persons and position of the enemy, when two of the latter, whom the soldier believed to be the prisoners at the bar, made a hostile movement in echellon towards him, and gave the soldier intimation, that a timely retreat on his part would be more prudent than making an ineffectual opposition, but this the stout-hearted myrmidon could not be convinced of -

"Though rising gale and breaking foam

And (boding dangers) warned him home,

He could not see - he would not hear,

Or sound or sign foreboding fear" -

but advancing still closer towards the enemy, for the purpose of reconnoitring, he was saluted by one of them, with a promise that his insatiate curiosity should alone be satisfied at the expense of his wits, and that whatever brains the soldier's Attic story might contain should be immediately dislodged, and blown about his ears - this menace did not, it would seem, cause the soldier's valour to "ooze through the palms of his fingers," he prepared to make a vigorous charge, when one of the enemy (Edwards got the credit of it) stepped back a few paces - renewed his menaces, and brandished a something in his hand which the obscurity of the night - natural shortsightedness, or other natural causes, producing as natural effects, would not enable the sentry to decide upon as having been a stout "Shillelagh," or a demi-cannon!  at all events, sustained as it was in a nearly vertical position, and threatening to bring whatever unlucky "mixture of earth's mould" it might happen to contact with, in a horizontal one, it could not but have a very terrible aspect.  Battle and bloodshed now seemed to stalk forward, and would probably have reigned paramount for some minutes longer, had not the tramp of approaching footsteps called off the sanguinary attention of those three men of war. - Doubting whether the now fast approaching detachment would turn out friendly or hostile, the myrimidon thought it more prudent to fall back upon a neighbouring guard-house, and obtain the aid of some of his party, than be forced, should he dispute the ground, and come off, if he would be at all allowed to come off - worsted - to "bivouack" in the relentless streets, till rosy morn's appearing, with perhaps a broken sconce for his pains, and but little honor to boot.  Swayed by this sage, and to say the truth, forcible reasoning, the already so much spoken of soldier drew off his solitary, but not the less formidable person, retiring upon the same guard-house, or sentry-box, and by the same route as he had issued from it.  Having here procured the aid of some other "brothers in arms," all with fresh strength and fresh resolution, hied them to the scene of action, and it speedily became apparent that the two prisoners were engaged with an enemy, neither party had calculated upon.  This enemy followed the profession of "night-errantry," not according to the good old fashion of being confined solely to rescuing, really or fancifully, justly or unjustly distressed wives, maids or widows, from the fangs of oppression, (though imperious duty, putting gallantry on the shelf altogether, would often call for their services in that way, as well as in other) but by raising their arms and voices in defence of the King's and subject's peace; be the offender male, or be she female - be it night, or be it day - in a word the three strangers were constables, and it being night, and they wandering about the streets, seeking whom they might attach, were ergo, night-errant constables. - The arrival of the military reinforcement soon decided the yet pending action - Edwards and Holt were captured, and lodged in safe custody.

On the spot where the prisoners had "bravadoed" the soldier, an iron crow bar was found, but the latter could not, or would not swear it was the same weapon the prisoner Edwards had held in his hand when he threatened personal violence.

Respecting the charge of burglary, it appeared in evidence, that on the day charged in the indictment, Smith's dwelling-house had been forcibly broken into, & having enjoined its occupants to strict silence, with many threats in case of disobedience - the burglars comenced plundering.  A chest was forced open, and some dollars in money abstracted.  The occupier of the house however, had, by the time this feat was accomplished, recovered the use of his tongue and raised an alarm of thieves, which had scarce escaped from his lips before he was felled to the ground - blood flowed profusely from the wound - the cries of murder and robbery becoming vociferated still louder, reached the sentry's ears, who, as has been detailed left his post and engaged with the men, on their getting out of the house.

Both prisoners were found guilty of the burglary.[3 ]

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone.

[2 ] The Sydney Gazette reported this trial on 19 August 1826.

[3 ] On 4 September 1826, Forbes C.J. ordered that judgment of death be recorded against both prisoners: Monitor, 8 September 1826.  That newspaper noted that Edwards' alias was Flash Jack, and called the other prisoner William Hold.  See also Sydney Gazette, 6 September 1826. 

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).

Soon after their convictions and before being sentenced, both prisoners attempted to escape from the Sydney gaol: Sydney Gazette, 26 August 1826.

 

Published by the Division of Law, Macquarie University