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

R. v. Middleton and Clarke [1827] NSWSupC 51

stealing, cattle, title, Mittagong

Supreme Court of New South Wales

Forbes C.J., 16 August 1827

Source: Australian, 17 August 1827

William Middleton and George Clarke, stood capitally indicted for cattle stealing.

Lyons, examined --- Is a stock-keeper, in the employ of Mr. D'Arietta, of the Cowpastures.  About Christmas last, he was attending his master's herd of cattle on he run, when two men came up to him, one of whom was the prisoner Clarke, and the other a man whom witness since knows to be a person named Underwood; they enquired of him if he had any strange cattle among his flock, which witness answered in the affirmative; the prisoner asked to look at them; and witness pointed the stray cattle out; the prisoner told witness, he knew who the cattle belonged to; the stray cattle were a cow and calf; the cow was of a reddish color, and branded in two places; the uppermost brand was OM, the undermost ID; the cow had calved while on the run, and the calf was then by her side.  The two men were then near enough to the beasts to discern the brands on the cow.  Underwood, the man with the prisoner Clarke, said he knew who the cow belonged to; that it was the property of a poor man, from whom it had strayed away, and undertook, if witness would give the cow up, to take it to the owner; witness refused to do so, unless he had the authority of his master; the two persons then went away.  On New-year's-day, about a week after the conversation spoken of, the prisoner Clarke came to him again, in company with a stranger, whom witness now knows to be a man named Pentley, and told witness that that was the man who owned the cow, the latter confirmed the statement made by the prisoner Clarke, and gave a description of the beast; witness in consequence of this second claim being made, went to his overseer for advice how to act, and the latter applied to Mr. D'Arietta, who directed the cow and calf to be given up to the claimants; witness did so, and the two persons drove away the cattle together.

Cross-examined - Does not know who the cow and calf belonged to; witness is a stock-keeper; after he parted with the cattle to the two men, a third person, whose name is Patrick Martin, came to him and enquired after a strange cow; the cow witness delivered over to Clarke and Pentley strayed into his master's flock; Clarke said the cow belonged to Pentley, and Pentley imposed himself on witness as being the owner; witness assisted the two men in driving the cow and calf over the river; the men, on coming to him, described the marks of the cow.

Re-examined - The marks of the cow were not described until the two persons had had a full opportunity of seeing the cattle, which were alleged by witness to have strayed; witness would not have parted with the cow and calf but for the representation that was made by the prisoner Clarke and his companion.

Thomas Dillon - Lives with his father, who is a settler at Appin; recollects some time in the beginning of the present year being at the Cow-pastures, and seeing two men cross the Cow-pasture River with a cow and calf in their possession; the two men asked him to assist them in getting the cattle over the river; witness did so; as soon as the cattle made a landing on the other side of the river, the men drove the cow and calf into the bush on the right hand; the prisoner Clarke is, to the best of witness's belief, one of the two men; witness observed there were two brands on the cow; the uppermost brand was OM; it was very plain; the undermost brand was not quite so legible; witness did not take particular notice of the brand mark; never saw the cow after, but saw the calf a little time ago in the pound at Campbell Town.

Patrick Martin deposed, that some time in the month of January last he met Mr. D'Arietta's stock-keeper on his master's run on the Cow-pastures, and made enquiry of him if he had seen any strayed cattle, and at the same time described them; the stockman told him there had been a polled cow, which witness had previously described on his run a few days before, but that two men had come on the farm who claimed the cow, and took it and a calf away; witness afterwards saw a cow at a place called Broughton's Pass, in the district of Appin, which lay dead; it appeared to have been shot by a ball in the forehead; the brand marks on the side of the beast were cut out; the skin, with the exception of that part where the brand marks had been, was entire; from the general appearance of the beast, and from having had it in his possession so long, witness could swear it was the cow he had lost; the cow was lost from Mettigong, at which place witness had some cattle grazing; besides, the cow was in calf when witness missed her from the run; it was three months after witness lost the cow before he saw it again, which was on the occasion alluded to; expected that the cow would have calved within that time; the cow witness lost was branded OM and ID.

Cross-examined - The brand ID was the most visible mark of the two; the cow was of the buffalo breed; that is certainly a common breed in this Colony; cannot swear positively the cow witness saw lying dead was the one he lost; only speaks as to general appearance; the cow witness lost was his sole property; he lost it from Mettigong, in the New Country; it might have strayed away.

By the Court - That part of the hide which was cut out was in the same part of the beast where witness brands his cattle, and in the same place where the cow he lost was branded.

Thomas Dillon recalled - The calf which I saw driven over the Cow-pasture River I afterwards saw in the pound at Campbell-town; Patrick Martin (the prosecutor) claimed it as his property, as being the produce of his cow.

For the prisoner it was contended in the first place that there was no evidence whatever adduced against Middleton so as to call upon him to enter upon his defence, and that therefore he ought to be discharged from the dock.  With regard to the other prisoner (Clark) it was contended, that assuming what the witness had stated were facts, and that the prisoner, Clarke, did, by means of a false token to another, get into his possession the cow and calf; then, even it was no larceny, and that consequently the information could not be sustained in support of this reasoning.  A case which had been decided before the Twelve Judges, was attempted to be assimilated with that before the Court, wherein the Judges decided in favor of the objection, such as was now argued.

The Chief Justice - "With regard to the first objection, there is certainly no evidence before the Court, against the prisoner Middleton, and he must therefore be discharged.  With regard to the other objection, I am clearly of opinion the cow and calf, laid in this information, as being stolen, were in a situation, while on the farm of Mr. D'Arietta, of a larceny being committed upon them. - Where animals stray, and get into other people's herds, they are in the custody of such persons, until an owner appear for them, and then they are bound to give the animals up, upon a proper claim, or proof that the individual applying is the proper owner.  In this case the cow and calf stray away.  I assumed, that they go into the herd of Mr. D'Arietta; and, as is the custom of the country, he keeps them until an owner applies for their restoration.  Now, it appears, that the prisoner, and this man Pentley, first asked the stock keeper about the stray cattle; and, understanding there was a cow and calf which had strayed into the run, lay claim to them as being their property.  Upon this representation, and the description given by those persons, the cattle are given up.  Now, there is no proof that Clarke was the proprietor of those cattle, or that he had any right to go and demand them.  There is no proof of a legal right in the cattle; and, in the absence of such proof, it is certain a fraud has been committed.  If you are of opinion the identity of the beasts has been made out - then, if you are of my opinion, you will arrive at the conclusion that a fraud has been committed upno [sic] the prosecutor; at all events it is a strong case; and it will be with you, Gentlemen, to decide."

Verdict - Clarke, Guilty.  Middleton, Not Guilty.

Published by the Division of Law, Macquarie University