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

R. v. Reynolds [1827] NSWSupC 66

stealing, horse - indictments

Supreme Court of New South Wales

Forbes C.J., 19 November 1827

Source: Monitor, 22 November 1827

 

William Reynolds, a Native of the Colony, was indicted, for that he on the 23rd, of August last, did steal one mare, and one filly, the property of Michael Power of Wilberforce.[1 ]

MICHAEL POWER, sworn: resides at Wilberforce; about the 22nd. or 23rd. of last August he lost a filly from a paddock, about two miles from his house.  A neighbour reported his loss to him, upon which, deponent immediately set off towards Sydney in pursuit of the thief; on the road called at the half-way house, between Parramatta and Windsor, kept by Gough, who informed him, that he had not a doubt but his filly would be found, and to this end, Gough accompanied deponent to within 2 miles of Sydney.  When on the Orphan School Hill, fell in with Reynolds (the prisoner) riding in a direction for Parramatta, and accused him of having stolen the mare; prisoner denied it, but said that he knew where to find her.  Deponent subsequently saw the filly at the Police Office.

THOMAS MALONEY, sworn, resides at Wilberforce, on the farm adjoining that of the Prosecutor: knows prosecutors' horses, which are sometimes suffered to graze in a Paddock belonging to the witness, and at other times in a Paddock about one mile and a half from the Prosecutors house.  About the 22nd of August last, witness lost a mare, and also missed a filly belonging to Power, whom he immediately informed as to their mutual loss.  It was then agreed upon, that they should set off in different directions in quest of the animals; the witness towards Colo, and the prosecutor towards Sydney.

ROBERT KEMP, sworn, is a horse dealer, and resides in Sydney; knows the prisoner at the bar, who, accompanied by another man, brought a mare and filly to his stables, and said he wished to sell them. - The filly was rising two years, a chesnut, with a long tail   Witness bargained with the prisoner at the bar, to exchange a horse and five pounds for the filly.  Prisoner then expressed a desire to sell the mare, and in order that she might bring a better price, docked her in Witness's yard.  A man named Power was in company with the prisoner when he was bargaining about the exchange, and acknowledged the filly as his property, but did not seem averse from the prisoner making the exchange.  Power at one time said to Reynolds, "you scoundrel do you suppose I am going to fool away my mare in this manner?"  From the circumstance of witness having been employed on former occasions by the prisoner, Power's expression did not excite any suspicion as to the mares being dishonestly obtained; conceived from the disparity of age that Power was the father of Reynolds, and that he was displeased with the latter for not insisting upon a better price.

JAMES GOUGH, sworn, resided in July last on the Windsor Road, kept the Half-way House, knows the prisoner at the Bar who called at his house between the hours of nine and ten on Saturday night, the night charged in the indictment.  Prisoner rode a long-tailed chesnut filly, and from the circumstance of the time of night, the Prisoners haste to depart, and his not having any saddle, suspected that "all was not right," and expressed himself to this intent to his wife.  On the following Monday, prosecutor called at his house and told him of his loss, whereupon witness was confirmed in his suspicions, and agreed to accompany Power to Sydney, with the view of recovering her before she had been sold.  Witness was induced to take an active part in the affair, as he knew the prisoner's father to be a very decent man, and the head of a numerous family, and considered, if the filly could be recovered in time, that the matter might be hushed up.  About two miles from Sydney, they met the prisoner, who was not immediately recognised by the prosecutor; witness however knew him, and jumping from his chaise, upbraided him with the robbery, to which he confessed, and said "that he might as well be hanged at first as at last."  Witness, after some conversation, in which the particulars relative to the exchange were detailed, was informed by the prisoner, that the horse he had thus exchanged was at a certain house in Parramatta.  Witness still entertaining a hope, of being able to settle the business quietly, took the horse that the prisoner rode, and relinquished to him his seat in the chaise, when the prosecutor and Reynolds drove into town, while he turned back to Parramatta, in order to endeavour to recover the horse.

Mr. ROWE then rose for the defence, and objected to the validity of the proceedings upon the grounds of a flaw in the indictment.  The common law provided two different kinds of punishment for the stealing of a mare and of a filly; the former was a capital offence, the latter was not.  He contended therefore that the indictment embraced two separate and distinct charges in one count, which he submitted to His Honor, must prove fatal to the whole proceedings.  He adduced a case which he considered in point, wherein a prisoner was acquitted upon a charge of stealing a cow, whereas it was proved upon the trial to be a heifer,[2] although the fact of stealing had been fully made out.  The Judge overruled the objection; it was true that the prisoner had been indicted for stealing a mare and filly, but what then!  Why he must be acquitted of stealing the mare, but evidence as regards the filly must go before the Jury.  His Honor then delivered a concise but most perspicuous charge, when the Jury for a short time retired, and brought in a verdict of "Guilty of stealing the filly," against the prisoner, who was remanded for sentence.

 

Notes

[1 ] See also Sydney Gazette, 21 November 1827.

On 9 August 1827, William Reynolds was found guilty of another charge of horse stealing: see Australian, 10 August 1827.  The offence being tried in the case reported here took place only two weeks after the first conviction, presumably meaning either that there were two people of that name, or that he was quickly released from custody after the first conviction.

[2] See also R. v. Barnett, Sydney Gazette, 5 December 1828.

Published by the Division of Law, Macquarie University