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

R. v. Ford and Tibbin [1828] NSWSupC 36

burglary, Windsor, convict escape, confession, approver, evidence of, bushrangers

Supreme Court of New South Wales

Stephen J., 24 May 1828

Source: Australian, 28 May 1828

 

William Ford and Samuel Tibbin were capitally indicted for a burglary in the dwelling-house of one Stephen Hunter, and for putting the inmates in bodily fear.[1 ]

STEPHEN HUNTER examined - Is a landholder at Windsor.  Resides in the District of Cornwallis.  About two o'clock in the morning of the 11th of April was awakened by a noise in an adjoining room.  Found the window had been forced open, it having been left secure over-night.  Armed himself with a bayonet.  Saw between the crevice of the door a man standing outside.  Asked who was there.  Somebody replied, we are constables; and the question was put peremptorily as to how many persons were in the house.  Witness answered there was a man named Jones and a lad named Howell.  One from the outside, the same who had before spoken, rejoined, that was the person he wanted.  Witness answered he did not think it was.  Shortly after asked witness if he intended soon to make a light.  Witness said no.  The same person then spoke to another man on the outside, whom he told to put his gun into the window, which was done; and the question from outside was put to witness  the question  "Do you see that?" to which witness answered in the affirmative.  The witness then went on to say  he desired me to make a light, which I refused to do.  The same witness then said, I will give you the contents of this (meaning the gun) if you do not.  On my still persisting, he ordered some man who was with him to get in at the window.  I saw a person at that instant make a spring at the window.  I had not yet struck a light in the room, and could not distinguish the features of any person who came to the house that night sufficiently to identify either of them.  I do not think it was either of the prisoners at the bar.  When the man was partly in at the window, I made a thrust at him with a bayonet.  I stumbled against a stool, and fell towards a man, who was at this time in the room, when he made a snatch at the bayonet.  I overheard one man say to the other, you have knocked the priming out of this piece, and the other make answer, that he had not.  A piece was discharged immediately after.  I am of opinion that the piece was discharged in a direction towards me.  I found several small pieces of iron rock, which were the contents of the piece.  They passed through an oaken box that lay in the room.  I was then told by one of these persons to deliver up my weapon, and made answer that they might fire again, and then I would not.  Jones here-upon ran into an adjoining room, and cried out murder; when the two men observing to each other that they had been there long enough, left the house.  I afterwards found the bayonet that had been snatched out of my hand, in one corner of the room.  There was nothing taken away.  My reason for thinking it was neither of the prisoners who snatched the bayonet from me, or who were in my house on this particular evening is because I think neither of them could take an instrument of that description so easily as the man did.

 JONES  I am a labouring man.  I live about 100 yards from last witness's  residence.  Between one and two o'clock on the morning of the 12th of April last, I heard a cry of murder, and rising up from bed to ascertain whence the noise came, found it to proceed from my neighbour Hunter's (prosecutor's) house, and instantly after heard the discharge of fire arms.  I then took a pitch-fork in my hands, and went to Hunter's house, on approaching which, I saw two men running in a direction from the house towards me.  The night was dark.  I then stepped a little way out of the road, and knelt down.  I cried out to them halloo  upon which the prisoner Ford, who was one of those two men, presented a gun which he had in his hand at me, and then I made a blow at him with the pitch-fork that I had, and the musket dropped from his hand.  He resisted a good deal, but I succeeded in making him prisoner, and took the prisoner before the Magistrates.  I cannot swear to the identity of the other man.  He was in size and general appearance like the other prisoner.  On examining the musket, I found it to contain a charge of swan shot, but the piece had no priming in it.  First of all I took prisoner Ford into prosecutor's house.  This was immediately upon taking him prisoner.  There was no light in the house at the time.  I saw nothing in the hands of the second man.  He escaped.  The prisoner Ford, on being taken, said he had no thing about him, and spoke no further.

BENJAMIN HODGIN deposed that he is chief constable at Windsor.  On the 10th of April last, whilst in pursuit of a man named Dennis Maloney, he met with one Scuthorp, a Richmond constable, with whom, in consequence of some conversation that passed between them, he went to a settler's house, named Pitthouse.  On arriving there, from some further conversation that took place, witness lay wait and took the prisoner Tibbin into custody.

JAMES KING, admitted an approver  Is a prisoner of the crown employed in No. 10 iron gang.  I absconded from that gang on Easter Sunday, the 6th of last April, in company with the two prisoners, and went into the bush.  On the day following we met with a man named Maloney, and all three went to Mr. Cox's paddock at Richmond, and concealing ourselves, slept there all day.  From thence we went to Windsor, and returning a little time before day-break, again concealed ourselves, and sleeping the whole of the day, went out at midnight and took a direction towards the farm of Stephen Hunter, the prosecutor.  Maloney, the two prisoners at the bar, and myself, went in company.  Maloney opened the window, and the two prisoners went into the house.  We had two muskets between us.  Maloney had one, and Ford another.  Maloney was the first who entered the house by means of the window, and he opened the door to admit the two prisoners.  I remained outside on sentry.  A good deal of bustle took place in the house.  Maloney came to the door, and I saw him discharge his musket into the house.  Our object in going there was to get all we could.  Immediately upon the discharge of the piece there was a cry of murder set up in the house, and we all ran off.  Prisoner Ford was stopped and taken a short distance off.  The gun now produced was in the possession of Ford on the occasion spoken of.  Maloney gave it to Ford.  The piece that was discharged contained small pieces of stone.  I was apprehended on the present charge.

Proof of the prisoner Ford's having confessed to the charge for which he was indicted was then gone into.  Ford did not set up any defence; the other prisoner denied what the accomplice had stated respecting him.  Finally the Jury found both prisoners Guilty.[2 ]

Notes

[1 ] See also Sydney Gazette, 28 May 1828.

[2 ] On 28 May 1828, they were each sentenced to death: Sydney Gazette, 30 May 1828.  They were executed on 11 June 1828; each was under 25 years old: Australian, 13 June 1828.

Published by the Division of Law, Macquarie University