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

R v Short [1826] NSWSupC 31

stealing - women defendants in crime - criminal procedure - indictments - arrest of judgment

Supreme Court of New South Wales

Forbes C.J.,[1 ] 29 May 1826

Source: Australian, 31 May 1826

 

Laura Ann Short was indicted for stealing a gold ring, value 10s., a gold brooch, value 10s., and another brooch, value 5s., the goods and chattels of Daniel Whitehead.

A second count laid the property to be that of Ann Whitehead. [2 ]

The prisoner pleaded Not Guilty; and, as a matter of courtesy by the Court, permission was given that she might be accommodated with a seat.

ANN WHITEHEAD sworn; - examined, by Dr. Wardell, on behalf of the prosecution.  Knows the prisoner, L. Ann Short; they were at one time on terms of intimacy together.  Prisoner was in the habit of visiting at witness's house, very frequently.  She has sometimes come to her house four and five times in a day.  Prisoner made a visit on the 30th of January last - it was for the purpose of writing a letter for witness, to send to England; it was about 11 o'clock in the forenoon, when she came.  Witness procured a sheet of paper and prisoner began to write the letter.  A good deal of conversation ensued on various subjects; and, whilst prisoner was about to conclude the letter which she had written, two men came into the room where witness and prisoner were sitting.  One of the two persons, a man named Samuel Cooley, tapped prisoner on the shoulder[,] and enquired if she was writing "a love letter."  Prisoner made some reply, and the two individuals left the room,  A few minutes after, a person named Spicer passed by the house.  Witness observed him look hard in, at the window, and then turn round, as if with an intention to come in.  Prisoner observed his approach likewise, and exclaimed, "Oh! he is coming."  She immediately ran into the bedroom, to avoid being seen by Spicer.  The latter came into the room where witness was sitting, and remained there about a quarter of an hour; he then went away.  During his stay, he asked three or four times, why Mrs. Short had run away.  After Spicer had gone, the prisoner came from the bed-room.  Supposes she went away about one o'clock, as her husband used to come home at that hour to dinner.  About three o'clock in the same afternoon, witness went into the bed-room to work; and, at length got up from her seat, with an intention of going to her box, to put on her ring. - Witness usually kept her trinkets in a small paper box, which was deposited in a large box, and was kept in this room.  On opening it, she found the small box had been taken out, and her wedding ring, together with two brooches, which it contained, were gone.  There is but one apartment in the house, that is used as a bed-room; it was in this room that prisoner had gone to hide herself from the view of Spicer.  Witness, on discovering her loss, went out of the room; and, seeing a servant man in the passage, named Phillip Riley, asked him if he had seen any thing of the brooch, or ring; he declared not; and, on being told that these articles had disappeared from the box, declared, it must have been an impossibility for him to go into witness' bed room without being observed by her; as having to pass through the parlour where witness and M[r]s. Short had been employed in writing.   Witness hereupon felt satisfied, that he was not the thief; and, for that day, dropped the subject.  Witness informed Mrs. Short, the next day, of the mysterious disappearance of the articles.; [sic] the latter replied, "it was very strange how any body could take them," and remarked, that she had not raised the latch of the door during her stay with witness, on different subjects, who, at length, went away.  Prisoner called on witness very frequently after this occurrence.  She repeatedly asked if witness had made anything out respecting her loss.  Witness as frequently expressed surprise, how the things could have been lost, as herself and witness were the only persons who could have had an opportunity of removing them.  Prisoner then remarked that she was extremely lucky in finding little things, and had no doubt but she might "light" on them, some time or other - this happened on the second or third day after the robbery.  Witness, on every subsequent visit that prisoner made at her house, continually enquired if she had been successful; prisoner said, she had not then, but desired witness to "keep her hopes alive,"  Prisoner hereupon became the object of her suspicions, as being the thief, and hope to "delude" her to return the ring and brooch.  On the Thursday week following, prisoner made another visit.  She came in great haste addressed witness with "good morning[,]' and said "I have been in great agitation this last half-hour, to see you.  I want to know what kind of a brooch it is that you have lost," -- producing one, which witness immediately identified, on examination, to be her property.  Witness asked prisoner where she got it from.  She replied, "well, now I am happy I have got it for you; I am sure it is yours."  She said, I went out with an intention of going to my father's, when I met Captain Piper, who said, "what makes you wear such a dirty bonnet?"  when I replied, "that I was unable to raise a dollar to have it cleaned;" he then gave me a dollar.  I was going along directly afterwards, when a barrack man came up to me and said, "young woman, do you want to buy a brooch?" I said, yes, if it is worth the money you ask for it; he said that he should have 6s. for it; he observed, that he had given a dollar for it.  But as I refused to give more than what he had given for it, the man sold it to be for 5s. which I gave him, and took the broach [sic] with me, the man representing he had bought the broach of a woman.  Witness after hearing this relation, asked if any person was present when she made the purchase; she replied, there was no one in particular whom she could mention, but that several persons were passing at the time.  Witness expressed surprise, that she should have bought any thing from a barrack man.  Prisoner then said, if she had only had her servant, Duffy, present, it would have been all she would have required.  Witness then told her something awkward might arise from it; to this she made no reply.  Prisoner then left witness the broach [sic], and went away, previous to which she expressed a hope of being able to hear some tidings of the ring also; said her husband (Dr. Short,) had a ring on his finger, and perhaps it would turn out to be her's (the witness's,) as he had found it; witness asked her, when Dr. Short had found it; prisoner replied, it was about five or six weeks ago ; witness said, then it was impossible it should be her ring, having lost it since that time.  Prisoner remarked, in the course of conversation, that the Doctor, (meaning her husband,) had said her luck in finding things would at some time or other involve her in trouble, she however, promised to look at the ring.  Prisoner called on her again the next day, said she had told her husband of the circumstance about the broach [sic], who said she had one very wrong; he remonstrated with her, saying, it might bring him to be "hanged;" she on that occasion too, remarked, that it was her belief, the ring her husband wore, was witness's.  Prisoner came in on the next day (Saturday), witness spoke to her very warmly on that occasion; witness said to her "why not bring the ring as you think it is mine?" the prisoner replied, she would ask Dr. Short about it, and at the same time observed, if it was not her ring, as it was Saturday, and the barrack men out, she would endeavour to find out the man of whom she purchased the broach [sic], and it was possible she might get some tidings of it; a few minutes only had elapsed after going away, when she returned, in company with her husband; the latter and prisoner stood at the gate, and called witness out of the house.  Dr. Short told her he had a ring which he supposed might belong to witness, he said it was found in Elizabeth-street; it was of a similar description to that which prisoner had given of it.  He said he had not had it beyond three or four weeks; he left witness the ring; swears the ring he pulled off his finger, and left with witness, was the ring which was stolen, and is her property.  There was a scratch in the inner edge of the ring near the stamp; it was a gold wedding ring.  No person could have gone into the bed-room on the occasion alluded to, but prisoner without witness's knowledge.

By the Court - Saw the brooch and ring about one hour before prisoner entered the house.  Had occasion to go to the box where these articles were deposited, and then missed them.  The brooch brought by the prisoner will swear to be the same as was lost.  Is equally sure as to the identity of the ring.  They are both witness's property - Prisoner was present with her husband when the ring was returned.  The property was here produced.

Cross-examined by Mr. Rowe for the prisoner - A servant, called Phillip, was present at the conversation between witness and prisoner.  Did not say on examination at the Police Office that the brooch had been lost on the day of a christening in one Kid's family.  The servant Phillip was at home on that day in charge of the house. - On Sunday evening witness having returned, blamed the man for taking some bread.  Did not charge him on the day of the christening with stealing the brooch or ring.  Witness had them then in her own possession.  Was usually in the habit of going to the box five and six times in the day.  Never said to any person she could not tell who had taken the brooch or ring, as many persons had access to the bed-room.  Never said so to Thos. Kid's wife- A woman named Dowden came out to this Colony in the same ship as witness did.  The brooch was returned on Thursday week following to its being missed, and the ring on the ensuing Saturday.  They were then in the same state as when stolen.  Witness bears no grudge towards prisoner or her husband.  Brought this brooch with her from England.  Had another brooch on coming out. - Again means that she lost the ring on the 30th of January.  Never uttered any revengeful expressions towards prisoner or her husband.  Never said she would spend the last farthing she could get in prosecuting Mrs. Short.  Seldom goes to the house of Mrs. Clarkson in Hunter-street - Knows no one called by the name of William White, in the Colony.  Never said anything to him or any other person respecting this prosecution.  Once had a servant named Mary Cole. She was once an acquaintance of witness. - They are not so intimate together as formerly.  They might have been brought before the Police together.  Witness was never there beyond once.  Was sent to the Factory[3 ]because witness could not prevent going; but has since returned, and is in the presence of the Court.  Will not say she was sent to that place innocently or otherwise.

Re-examined by Dr. Wardell - Prisoner was perfectly well aware that witness was sent to the Factory.  Notwithstanding this she was in the habit of intimacy with her, and of coming to her house almost every hour in the day.

PHILLIP RILEY corroborated the statement of Mrs. Whitehead.

THOMAS SPICER corroborated the evidence given by the two preceding witnesses, as to his going into prosecutrix house, for the purpose of speaking to Mrs. Short, on some business.

SAMUEL COOLING deposed to a similar effect.

This was the case for the prosecution.

For the defence,

MR. S. TERRY, deposed to being present at the Police Office, on the day that the business now before the Court was under investigation.  Remembers prosecutrix stating, that she went out on a Sabbath-day to take tea, or to a christening, cannot say which it was.  She was repeatedly asked if she missed the articles on the Saturday or Sunday; prosecutrix replied on Monday the 30th instant.  She swore to having made no charge against "Phillip," a servant, of stealing the articles on the Sunday.  The man servant was afterwards called, who swore quite opposite; he deposed that it was on the Monday night on the return of his mistress home, that she blamed him for stealing the articles; witness means the brooch and ring.

Cross-examined; It was said by the witness (Phillip) that it was on the Monday she enquired of him who had been in the house during the mistress's absence.  The examination of this man took up a considerable time.  He appeared a good deal confused; thinks he was bothered.  The man gave his evidence pretty well until he came to be cross-examined, and then he became bewildered.  Cannot say whether he confused the accusation of stealing bread, with that of stealing the trinkets.

By the Court - The servant gave different testimony to that of his mistress.

Cross-examination continued; as far as recollection serves, believes Mrs. Whitehead deposed she had not accused the servant of purloining the ring and brooch.  The articles being found in prisoner's possession, was accounted for in this way.  The ring was found in the street, by one Duffy, and prisoner.  The broach [sic] was said to have been bought by prisoner, of a barrack man, for 5s.; considers it was from Duffey's evidence, that got Mrs. Short committed.

Mr. MICHAEL ROBINSON, spoke to nearly the same effect, as the above witness; has no recollection of a christening being mentioned there.  Cannot charge his memory with any accusation being made of stealing the articles against any other person than Mrs. Short.  Evidence in corroboration of Mrs. Whitehead's statement was called, and added his belief, that the testimony of Phillip Riley, was so flatly contradictory, that it was deemed by the Bench inadmissable, and they would not receive it.

Mr. THOMAS AMSDEN, understood from the servant man's evidence, that his mistress had accused him of stealing them on the previous day, (Sunday).

Cross-examined. - Understood that Mrs. Short had bought the broach [sic], and Duffy found the ring.

Mr. J.T. CAMPBELL, J.P. examined. - There was a considerable discrepancy between the evidence of Mrs. W. and her servant; his evidence being so contrary at one part and on [th]e other of the examination, it was discredited.

Cross-examined. - Remembers that witness at one time said he was accused of stealing bread, and at an other time of stealing jewels, and between the two charges, he grew confused; and his evidence was in consequence rejected.

Dr. HALLORAN deposed, that some time during the last Christmas vacation, he saw a ring on Dr. Short's finger, who remarked he had been "re-married."  Witness did not examine it.

THOMAS KID. Knows prosecutrix.  Remembers her stating to him, the loss of her articles.  She stated that several persons had admission to the bed-room.  Said there were two or three who went in and out, and, among others, was Mrs. Short.  Said she could not tell whom to blame for the business.  A young woman, named "Cole," was sewing in her house on the day the articles were missed.

JOE RAPHAEL was at the Police Office on the commitment of Mrs. Short.   Remembers the examination of Mrs. Whitehead.  She said something about a christening.  The servant swore that on Mistress' return from the christening, on the Sunday, she challenged him with stealing the ring and brooch.  A few minutes afterwards, Dr. Wardell examined him, and he then said he believed his Mistress did not miss the articles before the Monday (the next day).  Cannot say whether Mrs. W. said she went out to a christening or a party "at pleasure."  Knows the subject was "chewed" over a good deal.

Cross-examined.  The servant recollected himself, on re-examination.  Knows nothing about christenings, or ladies parties of evening pleasures.  Always stays at home.  Never heard anything about a christian (Loud laughter).  Witness, "I meant christening."

THOMAS OWEN examined.  Is clerk in the office of Mr. Rowe.  Remembers seeing Dr. Short wear a ring in the early part of January.

Wm. WHITE sworn.  Resides at Mrs. Clarkson's, in Hunter-street.  Knows both Mr. and Mrs. Whitehead - they are now in Court.  Has frequently called her by name.  Has had conversation with her about business, before the Court.  She knows witness by name, very well.  Advised her to give up the prosecution.  Said she would spend the last farthing before she would give it up.  She appeared in a passion, and spoke in a revengeful manner.  She was formerly a servant to Mrs. Reibey.  Knows nothing against her general character.

Cross-examined.  Did not want to compound felony.  Witness undertook the task of advising with the prosecutrix, on his own head.

Mrs. WHITEHEAD.  On Friday last, a woman named "Cooley," said in witness's presence, that her husband had lent "Whitehead" £15, to prosecute Mrs. Short.  This reached Dr. Halloran's ears; and in consequence a subpoena was issued for my attendance.

Mr.  BRUCE.  Heard the woman alluded to say, that her husband had advanced £5, to Counsel, at the Police Office, and £10 to further the prosecution in that Court.

  DUFFEY was now called.  Has been nearly three years' in the service of Mr. Short.  Knows Mistress to have had in her possession, a brooch.  Remembers one Thursday after returning home from the market, and breakfast being over in the parlour, he complained to Mistress that there was no bread.  She hereupon gave him a dollar to go and get some.  They both happened to be going out together at the instant; but one went by the back door, and the other at the front.  He, however, saw Mistress standing at "Hill's" corner.  She was talking to some man.  Saw him give her a brooch; and she gave him in return, a dollar.  It was a round rim brooch; there was a stone in the middle of it, and some little stones  [The brooch sworn to by prosecutrix was here handed to witness].  Will not swear positively it is the same brooch as Mistress bought.  Mistress had also a wedding ring in her possession.  She and witness were walking together in Elizabeth-street, when she suddenly stopped, and pointed out a ring to witness, which was then lying on the ground.  Witness took it up, rubbed the dirt off, and gave it to her.  Will not swear it was a wedding ring.  Mistress gave it to her husband.  He said, "Dn it, why, it looks like a wedding ring."  Never saw Master with a ring on finger before that time in his life.

The defence here closed.  The learned Judge then summed up the evidence at great length.  Verdict - Guilty.

 

 

Forbes C.J., 19 June 1826

Source: Sydney Gazette, 21 June 1826

 

Rex. v. Short.  - In this case Mr. Rowe moved an arrest of judgment, on the authority of 3d Maule and Selwyn, p. 539, and Comyn's Digest, vol. 4, p. 531, that the property, charged as having been stolen from the parties laid in the indictment, was not sufficiently described; as it did not appear, in what was termed the body of the indictment, what the property was that was stolen, nor from whom it was taken but was only expressed in the conclusion.  Comyn, in referring to Maule and Selwyn, said, that it was essential that the property, and also the person to whom it belonged, should appear in the body of the indictment, and not merely in the conclusion, as the conclusion was only to be taken as a regular inference from the premises gone before, and could never supply a deficiency in the body, as was clearly established on the authority of the case in Maule and Selwyn, to which he referred.  The second ground on which he founded his motion, was that there were two distinct counts in the indictment, one charging the larceny to have been committed on the goods of Daniel Whitehead, and another on the goods of Anne Whitehead.  That the case was put to the Jury on those two counts, upon which they returned a general verdict of guilty, without specifying upon which distinct larceny, for there were two expressly charged, they founded their verdict.  If the prisoner was called upon to plead to another information, preferred by either of the prosecutors, on the same charge, how could she plead the present prosecution, as a bar to such indictment?  If she had even been acquitted on the present indictment, how could she plead a former acquittal in answer to another information?  To which of the counts would it apply, as there were two distinct felonies charged?  For its uncertainty then, he contended, the indictment was defective, as the two larcenies charged in it might have been committed on different occasions, and it could not be ascertained, by the finding of the Jury, to which of the facts their verdict meant to apply; for it should also be remembered, that Anne Whitehead, was not described in the indictment as the wife of Daniel Whitehead, nor was he described as the husband of Anne Whitehead.  In Comyn's Digest, p. 539, would be found, a case exactly parallel to that before the Court, and in 4 Maule and Selwyn, p. 217, in acase [sic] of error from the Quarter Sessions, where it appeared that 2 parcels of barley were delivered, upon one of which a fraud had been committed, Taddy argued that the indictment was incorrect, inasmuch as it did not appear upon which parcel the fraud had been committed, which objection was held valid, and the indictment quashed.  A third objection  had been taken to the trial, namely, that the description of the chattels alleged to have been stolen, was not sufficiently certain, and upon these grounds he submitted, that the prisoner was entitled to an arrest of judgment.

His Honor stated, that, with respect to the legal objections which had been taken, he would dispose of them at once, as he was unwilling that a hope should be entertained that there was any thing in them which would have the effect of doing away with the judgment of the Court altogether; though, for reasons which he did not think it necessary then to state, he would defer pronouncing judgment to a future day, and that not distant, of which the law officer and the party should have timely notice.  As to the first objection, he admitted the principle, but he was not of opinion that it applied to the case before the Court, as the information was in that short form in which all other informations were laid before the Court by the Attorney General, and he felt some loss to conceive how the objection could have been taken.  The second objection, that the information contained two counts, stating the property differently, was also not well founded.  To meet any doubts which might arise as to marriage, it was every day's practice to state the property differently, and it was also every day's practice to find a general verdict on such an information, as if only one count was good, it was sufficient for the Court to pronounce judgment.  In civil actions the case was different, as the Jury there had to assess the damages, in order to ascertain which, where there were several counts, some good and some bad, it was necessary they should state on which of the counts they found their verdict; but, in a criminal proceeding, the awarding punishment was in the province of the Court alone, which could throw out that which was bad, and pronounce on what was good; and, as to the plea of former acquittal or conviction, an argument could not arise on that subject, where a verdict on the whole charge stood on record.  He would reserve the judgment to a future day, but not on any of the grounds taken by Counsel.  Remanded.

 

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 ]For analysis of cases of this kind, involving criminal prosecutions between women, see P. Byrne, ``On Her Own Hands: Women and Criminal Law in New South Wales, 1810-1830" in D. Philips and S. Davies (eds), A Nation of Rogues? Crime, Law and Punishment in Colonial Australia, Melbourne University Press, Melbourne, 1994.  Paula Byrne's analysis is taken further in her Criminal Law and Colonial Subject: New South Wales, 1810-1830, Cambridge University Press, Cambridge, 1993.

[3 ]The reference is to the Female Factory, which was at once a prison, barracks for female convicts, a factory, and a marriage bureau.  See A. Salt, These Outcast Women: the Parramatta Female Factory 1821-1848, Hale and Iremonger, Sydney, 1984. On the management of the factory, see Historical Records of Australia, Series 1, Vol. 12, pp 524-528.

 

Published by the Division of Law, Macquarie University