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

R. v. Byrne [1827] NSWSupC 63

stealing, mens rea, larceny by servants

Supreme Court of New South Wales

Forbes C.J., 7 November 1827

Source: Australian,  9 November 1827

Patrick Byrne was indicted for stealing a horse, valued at thirty pounds, belonging to Mr. P. Machenry.[1]

It appeared in evidence that Mr. Machenry directed the prisoner, who was an assigned servant of his, to drive a pair of his horses from Penrith to Mr. Pritchett's, at Sydney, who Mr. H expected would purchase them, but Mr. Pritchett not liking the terms upon which the horses were offered to be disposed of declined purchasing them.  The prisoner continued to keep the horses in his charge, but instead of returning them to Penrith, as appeared to be his employer's desire, he placed one in the hands of Power, a horse dealer, then living in Sydney, whom he empowered to dispose of for a sum of forty pounds alleging that he was authorised to do so by Mr. Machenry.  The horse was eventually sold by Power on the prisoner's account for thirty-five pounds, to a person named Connor, who was requested by the prisoner to take the money to the Rose and Crown Tavern, where he alleged Mr. Machenry would be found. - The purchaser in consequence went to the place appointed, but not finding Mr. Machenry there searched about the town for him, and finally made him acquainted with his purchase of the horse.  Mr. Machenry denied having given his servant any general authority to dispose of the animal as he might feel disposed, and accordingly had him apprehended and committed for trial for the transaction, which was looked upon in the light of a fraud.

The prisoner called upon Mr. Pritchett to prove that he had a disposable power to sell the horse in question; but to the truth of this Mr. P. refused to swear, adding that he considered the prisoner as not having been provided with any general authority to dispose of the horse, as he seemed to have done.

Prisoner, in his defence, said he could have no fraudulent design in selling the horse, as he had received no money for it, and sold the animal only because he thought his master desirous of having it off his hands.

The Chief Justice summed up to the Jury, observing that the main question to be considered was, whether the prisoner, in the situation he stood in with his master, was delegated with disposable power to sell the horse in question, and whether the man, not receiving any part of the product of such sale, did so with a good intention.  For his part, the learned Judge felt disposed to imagine, from the evidence of the witness Power, that the money was put in jeopardy, because the prisoner told Power to bring the money to a place where his master never was, and from this it might be justly inferred that the prisoner intended to intercept, and receive the money.[2 ]

The Jury then retired to their room; after remaining there about three-quarters of an hour, the Foreman returned into Court, and, after a few moments consultation with the Judge, again returned to the Jury-room.  About a quarter of an hour further elapsed, when the Chief Justice sent a message from the Court, directing the attendance of the Jury; the latter having resumed their seats, the learned Judge, addressing them, asked if any technical difficulties appeared to them in the construction of the indictment?  The Foreman, having the indictment in his hand, replied in the affirmative.

The Chief JUSTICE - Gentlemen, the present charge is one of horse-stealing; the indictment is laid at common law, and not under the statute; it is for taking and driving away a horse, the property of the prosecutor; the offence of horse stealing is of itself alone a capital felony; hence every indictment of the kind is described, according to the terms of the statute, as being contrary to the form of the statute in that case made and provided; but when the crown officer does not mean to go under the statute, but to prosecute merely for a larceny, that has no reference to the statute; but the indictment takes a general form, and sets out a taking and a leading away of such and such animal.  This then is not a case of horse-stealing under the statute, which makes the offence a capital felony, but is a case at common law, which makes the offence a transportable one.

The Foreman, having conferred a short time with his brother jurymen, said their principal difficulty existed in this: that they were of opinion the prisoner had no felonious intent, in disposing of the horse, the subject of this prosecution; and, that on the other hand, they could not convict the prisoner of leading and carrying away the said animal, inasmuch as it was in proof, that a jockey had done that, and not the prisoner.

The Chief JUSTICE - Gentlemen, for your information, it would perhaps be as well for me to tell you, that any conversion of property, by an individual with whom that property is entrusted, merely as a servant, is illegal, and amounts, in the contemplation of the law, to a stealing.  You may, however, find a special verdict, setting forth what are the facts upon which you find that verdict.

The FOREMAN - We find the prisoner Guilty of selling the beast, but without any intention to defraud.

The Chief JUSTICE - The Jury then consider, in this case, that there was no animus on the part of the prisoner, to convert the property to his own purposes.  Of course, under such an impression, the Jury may find a verdict of Not Guilty.  A verdict was returned accordingly.

Proclamation was then made for the prisoner's discharge.  Before, however, he was permitted to leave the dock, the Judge, addressing him, remarked that the evidence which had that day appeared against him, was of so strong a character, that he (the learned Judge) could not relieve his mind from an impression, that the party then about to leave the dock had disposed of the horse with an intention to appropriate the proceeds to his own use.  The prisoner, by the verdict of the Jury, would be restored to the society from which he came; but the learned Judge hoped that the present would serve as a lesson of caution for his better conduct in the future.


[1 ] See also In re Byrne et al., 1827.

[2 ] The Sydney Gazette, 9 November 1827, gave a different version of the Chief Justice's charge to the jury: "The Chief Justice recapitulated the evidence, and in observing on the defence set up, stated that the question was, whether from the relative situation of the prisoner towards his master, he had any disposing power over the property left in his charge.  As a matter of law, His Honor had no hesitation in laying it down that he had not.  The prisoner was an assigned servant to Mr. M'Henry; he was a prisoner of the Crown, under the sentence of the law, and acted as his master's groom.  The prisoner's possession, therefore, was the possession of his master, which being disturbed without legal authority, became taucious [tortious].  With respect to the prisoner's plea that he had not received any of the money for which the horse was sold, His Honor observed, that he could not direct his mind, after the evidence of Power, that the money was put in jeopardy, as the prisoner had directed Power to bring it to Hill's Tavern, where it appeared his master did not live, but was residing with a friend in Pitt-street.  Under all the circumstances of the case, he did not think the Jury could have any difficulty in finding the prisoner guilty, as there did not appear to be one single fact in his favour."

Published by the Division of Law, Macquarie University