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

R. v. Curtis and Murtagh [1828] NSWSupC 39

stealing, cattle, Bringelly, women defendants in crime, capital punishment, sentencing discretion, Wentworth family, Crown mercy

Supreme Court of New South Wales

Trial, 29 May 1828

Source: Australian, 30 May 1828

John Curtis was capitally indicted for cattle stealing, and Mary Murtagh for being an accessary after the fact.

The SOLICITOR GENERAL conducted the case for the prosecution.

Mr. W. C. WENTWORTH examined  I am one of the executors to the late Mr. D'Arcy Wentworth, who was my father.  I hold the probate of his will, I have two co-executors.  We have acted together since the 26th of last April.  At that time there were on my father's estate at Bringelly, between seven and eight hundred head of cattle.  Some were branded D W on one hip, and C W. on the other.  Others were not branded at all.

Cross-examined  I have no doubt that at the period alluded to a great number of cattle died for what of pasturage.

GEORGE TRIBE  I am a settler living at Bringelly.  I resided there on the 26th of April last.  I was at home on that particular day.  About sun-down I heard a shot fired from the bottom of the paddock.  My man William and I went to the spot whence the noise proceeded, and saw a steer running towards us.  Saw Curtis on the other side of the river.  Did not see any gun with him.  I was then on Curtis's land.  Saw the bullock driven into the water by Curtis, getting the bullock's head down, drowned the beast.  He then dragged it to the side of the river, got it on the bank, and partly covered the carcase with weeds.  Next morning I gave information of what I had seen, and took the constable to a place where the beast was laying, on the preceding evening.  On arriving there we found the beast was gone, but the ground presented the appearances of the beast having been there.  In our way to this spot we went to the prisoner's house, and found there a cask containing beef.  It might contain two and-a-half hundred weight.  The beef bore every appearance of having been recently slaughtered.  It was salted down.  The cask was in the prisoner, Murtagh's bed-room.  In the room I found about 10lbs. of beef in a dish, which appeared to have been dressed that morning.  Some beef fat was also found in a plate tied up in an old petticoat.  There was also a bladder, containing blood.  At the time of this search, prisoner Murtagh was present.  On entering the house I found there Curtis, the woman Murtagh, and her husband and a strange man.  I hand-cuffed Murtagh and Curtis together, upon which the woman struck me, saying I had no business there, as I was a prisoner.  She offered no resistance to the constables' search.  I saw Murtagh the moment I went in.  Curtis, Murtagh, and his wife lived in the house together.  I know that Curtis was the land holder.  After the search was ended they were all taken into custody.  I found the haunches of the bullock in a pig stye on the premises.  They were quite fresh.  Three or four days afterwards, I found the head of a beast by a water hole, where it had been concealed.

Cross-examined - It is not the usual way of the Country to kill bullocks by drowning.  I did not report the finding of the bullock's head to the Magistrates.  I remained in "plant" for a full hour and a half, while the prisoner was driving the beast.  It was a strawberry coloured beast.  I heard the report of a musket shot on the ground where the beast was killed.  Did not see any person there with a gun.  Shooting is the usual way of slaughtering cattle.  Prisoner might have crossed that part of the river where the beast was slaughtered, over to the other side.  Prisoner Curtis has several cattle of his own.  I know he killed a beast of eighteen months old, about two or three days before.  This beast was in a very low condition.  The meat found in the cask could not have been part of this beast, its quality being far superior.  I found no hide nor offal belonging to a beast, in the house.  I am not very good friends with either of the prisoners.  I have quarrelled with both of them.  There was about two and half ewt of beef in the cask.  I should suppose the beast that I saw killed, would have weighed at least three ewt., if it had been properly dressed.  I observed on some of the meat, such appearances as a gun shot would have produced.  I had previously examined the carcase of the slaughtered bullock, and did not then see any gun shot wound.  I saw a brand on it of D. W.  It had a white face, black back, and was a strawberry colour, I should suppose the beast prisoner had, to be about fourteen months old.  Prisoner Martagh's husband has since died.

WILLIAM UNION - Is a free servant to last witness.  Lived on his farm at Bringelly.  Had heard a shot fired, and proceeded in the same direction towards the bottom of the prisoner Curtis' ground, whence the noise came.  Saw Curtis driving a bullock over the river.  Had just crossed over the river, and was then on the Government side.  It was a moon-light night.  The night was sufficiently light to distinguish objects.  Saw Curtis endeavouring to drive the bullock into a deep part of the river.  He was a full hour employed in driving the animal backwards and forwards.  It appeared to the witness, at the time, that Curtis's object in driving the beast into deep water, was to drown it.  The beast at length went into the water and swam over to a sandy landing place in the centre of the river.  Curtis stripped, and threw some sticks at it, and also splashed water in the animal's face.  It then got into deep water, and Curtis followed, laying hold of the beast's head, and keeping it forcibly down under the water.  There was a struggle between man and beast for several moments, till, becoming totally exhausted, Curtis dragged the animal by its horns to that part of the river whence he drew water, and covered part of the carcase with weeds.  He then put on his shirt, and went homewards, carrying his trowsers over his shoulders.  His house was within sight of the spot where this occurrence took place.  Witness had known Curtis for the last seven or eight years.  Could swear the prisoner was the man.  After he had passed by this and the last witness, the two latter got up on their legs, and went to look at the bullock.  Saw a brand of W. D. on the beast.

By the COURT - Prisoner Curtis has about 30 acres of land in cultivation.  He has also a cattle run.  Witness had never seen many cattle in the run.  The bullock that was killed had been upon ground belonging to Murtagh, whom witness knows to have a number of cows and steers of his own, on this run.

ROBERT SMITH - Is chief constable at Bringelly.  On Tuesday the 28th of April, I received warrants to search Curtis's house.  I went there in company with Mr. Wentworth's overseer, George Tribe, and Edward Bath,  The two latter are constables.  It was between ten and one o'clock on that day.  On going into the house, found there Curtis, the other prisoner Murtagh, and her husband, and some other strange man.  They were all in one apartment together.  I addressed Curtis first, telling him I possessed a search warrant, authorizing me to look for some meat or skins belonging to Mr. Wentworth; to which Curtis made no reply.  The next person I read the warrant to, continued the witness, was Murtagh, who was also silent.  I then proceeded to search the place, in the course of doing which, prisoner Murtagh spoke to me, saying there was no beef in that house.  She at the same time passed by me.  I saw her lay hold of a dish, lift it up and remove it to a box, which I examined, and found it to be some warm boiled fresh beef.  I then turned round and saw a cask which was covered over, and found it to be quite full of beef.  It appeared not to have been salted many hours.  There was some salt still laying on the meat, which had not yet dissolved, nor turned into brine.  After taking charge of the beef, I went with Tribe to the river side, where there was every appearance of a beast having lately been slaughtered.  There were some lumps of blood and part of a bullock's entrails, and appearance of pieces of meat having been laying there, I then returned to the house.  In company with the same persons, and searched the back part of the prisoner's premises, and found in a pig stye part of a bullock's paunch, a bag, wet with water, and stained with blood, laying over the stye, drying in the sun.  In the house I saw a stool on which some meat appeared to have been cut up.  There were some notches in the stool, apparently occasioned by an axe.  The chips of wood appeared to be quite fresh, as also the pieces of meat.

NICHOLAS CARBERRY - Is an overseer to Mr. W. C. Wentworth.  In the month of April last branded some cattle belonging to him.  Branded the cattle D. W. on the right hip, and C. W. on the left.  On the 20th of the same month missed one head of cattle from the run.  In the beginning of the following month Geo. Tribe shewed witness the head of a beast.  This was at the bottom of a piece of ground prisoner Curtis at that time held.  I knew the head by a crack in one of its horns.  Will swear it belonged to Mr. Wentworth's stock.

This was the case for the prosecution.

The prisoners called no evidence.  Verdict  Curtis, Guilty  Murtagh, Not Guilty.  Prisoner Curtis was remanded --- Murtagh was discharged.


Dowling J., 4 June 1828

Source: Australian, 6 June 1828


John Curtis, found guilty upon a charge of cattle stealing, being asked by the Clerk of the Arraigns if he was disposed to shew cause why judgment should not be passed upon, and execution awarded him according to law, put in a declaration of his innocence.  Proclamation for profound silence being ordered by the Court, and Mr. Justice Dowling, before whom the prisoner had been tried, having assumed the black cap, the learned Judge, with becoming solemnity, proceeded to address the prisoner.[1 ]

John Curtis, you have been indicted for stealing at Bringelly, on the 26th day of April last, a cow, the property of the late D'Arcy Wentworth, Esquire.  After an attentive consideration of all the circumstances in your case, the Jury by whom you were tried found you guilty; and indeed, attending to the evidence against you, prisoner, I do not see how the Jury could have come to any other conclusion.  This is an offence to which the law, for wise reasons, affixes the penalty of death.  Property of the description of which you have been found guilty of stealing, from its nature is much exposed to depredation, and for that reason the law has thrown around it a peculiar protection, making the penalty of stealing the same --- death.  I am sorry to observe that in your case, prisoner, there is no circumstance to justify me holding out a hope that this dreadful penalty can be in any way averted.  There is against you every circumstance of aggravation.  You had not the plea of distress --- no large family and wife perishing for food.  You had no appeal of this sort to the feelings of human nature; but, on the contrary, I find you were possessed of land, of cattle, and house, and every moderate comfort that a reasonable man could possibly wish for.   This circumstance, therefore, leaves no doubt on my mind but that you were actuated by a lawless disposition to plunder your neighbour, without any possible inducement but from indulgence in a course of predatory habits.  How often you have indulged in this iniquitous mode of life, the Court cannot tell; but it has every reason to fear, that the present is not the first offence.  Indeed the audacious manner in which you committed this offence, shewed too plainly that you were accustomed to, and well acquainted with such acts.  Justice has at length overtaken you, and considering the nature of your offence, justice requires such an example in you as may tend to operate as a warning upon others disposed to pursue so mischievous a course.  It is therefore my duty to warn you of the precipice on which you stand, and to tell you that in this instance the law must certainly take its course.  Ere long you will be ushered into the awful presence of your Maker.  A few short days, and those objects which tempted your passion in this unfortunate affair will any longer cease to have influence over you.  Your race will then be run, and you will be hurried into another world, and be introduced into the presence of an omniscient Being.  Let me therefore entreat you, that when you return from this place to you prison cell, you will commence on the work of repentance.  Shut out from your mind all thoughts of this world.  Endeavour by hearty and earnest prayer, and sincere contrition for the offences you have been guilty of in this world, to make you supplication to the Father of all mercies for that hope of mercy which you must not expect to meet with this side of the grave.  I do most fervently trust that your example will be a warning to those who may witness it; and I trust you will submit with patience to the decrees of justice.  It now remains for me to pronounce the awful sentence of death.  The sentence of the law is, that you, John Curtis, be taken hence to the prison from whence you came, and that on a given day you be led to the usual place of execution, and there be hanged by the neck until you body be dead, and may God, in his infinite mercy, have compassion on your soul![2 ]


Execution, 16 June 1828

Source: Australian, 18 June 1828


Between nine and ten of Monday morning last the execution of two criminals took place in the yard behind the body of the jail in George-street.  One of the culprits bore the name of John Curtis - the other Joseph Johnson.  Johnson was also commonly known by the name of Joseph Macauley.  Curtis suffered death for cattle stealing - Johnson or Macauley for a robbery on the highway.  Both, it was believed, protested their innocence.  A conviction to the contrary, however, was strongly impressed on the minds of the Jury, before whom they were separately tried, and by whom they were returned to the Judge as guilty.  An awful sentence upon each - the sentence of death followed, and contrary, it is said, to the expectations which the unhappy men entertained of a mitigation of that extremity of punishment, - the hangman was called in to perform his functions, and before ten o'clock of Monday morning, neither criminal was an inhabitant of this world.

The Reverend Mr. Power, the Roman Catholic Chaplain, communed with both the culprits, who joined in prayer with that attention and contrition usually exhibited by men situated in the like unhappy dilemma.  After the Sheriff had read over the death warrant, the culprits bowed submissively, and retiring towards two empty coffins which lay under the drop, knelt on the ground and prayed with the Clergyman for about twelve minutes.  They then rose, and the executioner having tightened the pinions which bound each culprit's arms, they proceeded faulteringly to ascend the ladder leading upwards to the drop-board.  The knees of each unhappy criminal tottered as he dragged one foot after another up the ladder, and there was a tremulous motion and a ghastly look on both, sufficient to shew that a dread, a sort of horror of the inevitable fate which awaited them, possessed both culprits.  Immediately after getting upon the drop-board, the unhappy men were rejoined by Mr. Power, who continued in communion, whilst the hangman was arranging his noose, and for a little time after.  The Sheriff at length intimated to Mr. Power that it was time to descend, upon which Mr. Power bestowed his parting benediction, and retired.  The executioner finally withdrew the spring supporting the drop-board, and the board fell.  There was a convulsive movement in the limbs of each culprit, which continued apparent to the spectators for some seconds.  This movement gradually relaxed, and the bodies swung lifeless to and fro', till the usual time having expired, they were taken down and deposited in the coffins.  The body of Curtis was delivered over to his friends, a hearse being in readiness to convey it to a place of interment.  Curtis has left a wife and several children behind him.  He is said to have possessed property in land and cattle to the value of 1500l.  He was sixty-one years of age.


[1 ] See also Sydney Gazette, 6 June 1828.

[2 ] On 1 October 1828, the Australian reported that Forbes C.J. sentenced James Henery to death for stealing a heifer: "This offence, observed His Honor, is one that has encreased to such an extent, and is such a prolific source of crime and perjury, that the Court has come to the resolution to visit offenders who may be convicted thereof, with the severest punishment known to the law."  For an account of his execution, see R. v. Troy and Bradley, 1828.

Not every prisoner received this sentence with solemnity.  In one case in December 1828, the prisoner greeted the sentence with the exclamation, "thank you for your news!": Sydney Gazette, 15 December 1828.

In response to Governor Darling's report of the criminal prosecutions and punishments for 1825 to 1827, Murray told the governor that he did not believe that an increase in executions decreases crime.  "It is for the gravest crimes  and to these only that the punishment of death is applicable; and I would seriously impress upon you the responsibility incurred by any deprivation of human life, which is not demanded by a clear and paramount necessity".  The clear implication was that the governor had allowed too many criminals to be hanged for minor offences.  See Historical Records of Australia, Series 1, Vol. 14, pp 497-498, and see p. 27 on the governor's initial report of the statistics.

The judges wrote to Governor Darling on 26 August 1828 (Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 190f.) about their sentencing practice, including the following: "In every case and more especially in those cases where the penalty of death is awarded by Law, the Judge who has tried the case, submits to the consideration of his Brethren, his notes of the trial, before the fate of the offender is finally (so far as the Judges are concerned) determined upon - At the close of every criminal Session, and during the Sessions, if necessary, each of the Judges transmits to your Excellency an abstract, or short general report, of the cases he has tried during the Session, in order that the Judge may, when called upon, attend you Excellency in Council, for the purpose of reading over his notes at length, and submitting the whole merits of every case to the deliberative wisdom of Your Excellency in council."

Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

[3 ] See also Sydney Gazette, 18 June 1828.

Published by the Division of Law, Macquarie University