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

R. v. Evans [1828] NSWSupC 59

stealing, in dwelling house

Supreme Court of New South Wales

Forbes C.J., 18 August 1828

Source, Australian, 20 August 1828

Thomas Evans and William Saunders were indicted for stealing twenty dollars, and five one pound bank notes, the property of Thos. Lewis, in the dwelling house of one of the prisoners (Thomas Evans) on the 27th of July last.[1 ]

It appeared in evidence that the prosecutor was a lodger in Evans's house.  That during his absence an escritoir had been opened, and the property laid in the indictment taken therefrom.  On prosecutor requesting leave to search the house for the property, Evans refused to allow it, unless first provided with a warrant.  A silk handkerchief prosecutor's property, was found on one of the prisoners.

Mr. Rowe, for the defence, contended that that part of the information, which charged the offence of stealing in the dwelling-house of the prisoner Evans, the dwelling-house being his, could not be entertained.  The statute under which the present information was framed, was intended to protect landlords against their lodgers, and not vice versa.

The Chief Justice said that the objection depended entirely on the construction of a new statute of the 7 and 8 Geo. 4, which repealed the 12th of Anne.  As the point, however, appeared on the record, his Honor would not stay the case then to decide upon the point-raised, as if there was any thing in it favorable to the prisoner, it might be mooted at another stage of the proceedings should the Jury go to the length of conviction.  The objection, however, only applied to the case of the prisoner Evans.  His Honor then proceeded to sum up the evidence to the Jury, putting it to them as one depending entirely on circumstances which were much stronger as applied to the case of Saunders, than to that of Evans.  The Jury acquitted both prisoners.  On the motion of the Solicitor General, Evans was remanded to answer to another charge, distinct from the former.


[1 ] See also Sydney Gazette, 8 and 15 September 1828 on another trial of a prisoner with this name.  On the reception of the new criminal laws of England, see Applicability of Criminal Laws Opinion, 1828.

Published by the Division of Law, Macquarie University