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

R. v. Sheppard, Piper and Pate [1827] NSWSupC 54

stealing in dwelling house - onus of proof in capital cases - benefit of clergy

Supreme Court of New South Wales

Stephen J., 7 September 1827

Source: Sydney Gazette, 10 September 1827


George Sheppard, John Richard Piper, and Reuben Pate, were indicted under the Statute, for stealing sundry monies, above the value of forty shillings, in the dwelling house of Mr. John Beeson, in Pitt-street on the 13th of August last.

The Attorney General[1 ] stated the case, and called the following witnesses:

J[a]mes Tobin, a constable, stated, that between one and two o'clock, on the morning of Monday, the 13th of August, he was on duty, and passing through Pitt-street, with constables Hamilton, and Poppalara, he heard a noise in the public-house called Loggerheads, kept by Mr. Beeson; on going in they found the prisoner Pate, who is a tailor, and lived next door, Sheppard, who was his journeyman, the prisoner Piper and a man nam[e]d Brothers; witness, and the other constables, desired them to go home, as it was an improper hour to be out, which they said they would do, and about 2 o'clock they all left the house, and went towards the dwelling of Pate; about 3 o[']clock, the constables were again passing by, and heard the same parties in the house, when they again requested them to go home, and the prisoners went away together; witness and his party, having some suspicion that a robbery was meditated, in consequence of the owner of the house being from home, and the man who was left in charge, being in a state of intoxication, agreed to watch the movements of the prisoners, and accordingly went round to the rear of the house, got over a paling into the yard, and placed themselves in such a situation as enabled them to see, through a chink in the back door, what was going on inside; the constables remained in that situation from about 3 o'clock, till between 4 and 5, when they heard a noise as of a box breaking open, and money dropping on the floor; witness and Hamilton rushed into the house, and found the prisoners, and a man named Brothers, who afterwards made his escape, in the house; the prisoner Sheppard, who was standing near the counter, dropt a handkerchief containing some sterling silver, and a Bank bill, on the ground, as witness entered; two boxes, which stood behind the counter, were forced open, and a canvas bag lying on the top of one of them, containing a large sum of money in silver, and Bank notes; the box appeared to have been wrenched open, the staple ha[v]ing been drawn out; after the prisoners, Piper and Brothers, were secured, witness heard something drop in the room where they were sitting, and supposing it to be money, made a search, and found a pair of sheers, which on comparing it to the marks on the box, appeared to be the instrument with which it was forced open; the prisoners tried to escape, and succeeded in getting into the street; Pate and Sheppard were secured; Brothers escaped, and has not yet been found; Piper also got away, but gave himself up in two or three days after; the whole amount of the money, which had been taken from the box by the prisoners, and found by the constables was £221 8s. 9d; the man who was in charge of the house, was intoxicated in the early part of the night, and was in bed in a drunken sleep, when the prisoners were found in the house the last time.

This witness underwent a long cross-examination by Mr. Rowe, but nothing material was elicited.

Hamilton, a constable, corroborated the testimony of the last witness, and identified the property found with the prisoners.

Mr. John Beson stated, that he is the owner of the public house called the Loggerheads, in Pitt-street; on Sunday, the 12th of August, witness went to Parramatta, leaving his house in charge of a man named Garfield, a servant; there were two boxes which stood behind the counter, in the bar, one of which contained money; in sterling silver, notes and dol[l]ars, to the amount of about £500; when witness returned the following day, he found that [t]he boxes had been broken open by drawing the screws.

Cross-examined. - Witness gave Garfield particular charge of the box when he was going away, telling him, as there was money in it, to take it with him when he went to bed.

The case for the prosecution having closed, Mr. Rowe submitted that the prisoners must be acquitted of the capital charge, as there had been no evidence to shew that the place where the robbery was committed was the dwelling house of Beeson, as laid in the information, and which it was I[n]cumbent on the prosecutor to have proved (1st Leech, 252[.])

The Attorney General contended, that there was evidence of that fact, inasmuch as the witness, Beeson, stated that he was the owner of the public house called the Loggerheads, and that, when he went to Parramatta, he left his house in charge of Garfield.  The learned Gentleman also observed, that it was not the mode o[f] practice in England to allow mere technical objections to avail, so as to vitiate an indictment where there appeared sufficient presumptive evidence of the facts.  The evidence, he contended, in this case was good, as far as it went, and he submitted that it should be left to the Jury, on that evidence, to say, as a matter of fact, whether it had been proved to be the dwelling-house of Beeson.

Mr. Rowe replied.

Mr. Justice Stephen observed, that the statute under which the prisoners were indicted, being one which constituted the offence a capital felony, it was laid down by all writers, should be interpreted as strictly as in a case of burglary.  The stealing should be in place where a burglary might be committed.  It did not, however, appear from any thing before the Court, though Beeson kept a public house in that particular place, that he lived there, and it was a principle of law, in favoram vitae,[2 ] that it must be specifically proved to have been occupied by him.  The learned Judge, therefore, ruled the objection to be valid, so far as the information ousted the prisoners of the benefit of clergy;[3 ] leaving it to the Jury, however, to say whether, from the evidence, the prisoners were guilty of the stealing.

His Honor then proceeded to sum up the evidence, stating the law of the case to the Jury.

The prisoners were found Not Guilty of stealing in a dwelling house, but Guilty of larceny.



[1 ] A.M. Baxter.

[2 ] In favour of life.  The full maxim is in favorem vitae libertatis et innocentiae omnia praesumuntur, in favour of life, liberty, and innocence all things are presumed.  Stephen J. appeared to be assuming, however, a stronger version than the usual onus of proof in criminal cases.

[3 ] Originally, the exemption of clergy from criminal process.  It was later extended to all literate persons, but lay people could use it only once.  It was abolished by particular statutes for some offences, and then generally abolished in 1827, by 7 & 8 Geo. 4, c. 28.

Published by the Division of Law, Macquarie University