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

R. v. Jones and Wilson [1828] NSWSupC 101

stealing, in dwelling house, meaning of "dwelling house", Windsor, convict escape

Supreme Court of New South Wales

Trial, 29 November 1828

Source: Australian, 2 December 1828

Moses Jones and David Wilson were arraigned, being indicted under the 7 and 8 Geo. 4.[1 ] for stealing on the 27th of September last, at Windsor, various articles of property, the goods of John Philmoe, in the dwelling-house of George Hall, and putting the person of Peter Dorothy in bodily fear.

Peter Dorothy deposed that he is an assigned government servant to Mr. George Hall, jun. at Lower Pitt Town, a hut on whose station witness had charge of.  Between two and three o'clock in the day time of the 27th of September last the two prisoners came up to the hut, and Jones asked witness to give him a drink of water.  Witness told them he had none, but directed them to a water run, at which the cattle drank.  Upon this Jones gave Wilson a piece of rope yarn, desiring him to tie witness's hands behind his back.  Witness said, gentlemen, I suppose you are going to rob me.  Jones made answer, don't fear, we'll not hurt you - we want what is here, and that we will have.  Witness was then bound, and the prisoners proceeded to rob the hut of a variety of property, consisting principally of provisions, about two pecks and a half of flour in a bag, out of which they left him the making of a cake, a quantity of tea, sugar, pork, and some few trifles of wearing apparel.  The latter property belonged to Peter Philimore.  Their value was above 20s.  After the prisoners left the hut, witness called Philimore to his assistance to cut the rope yarns, by which his hands had been tied.  A few days after, the prisoners were taken into custody, and witness saw them before the Magistrates at Windsor.  He then recognised their persons, as well as some property which had been found with them on apprehension.  [The property was produced and sworn to.]

Edward Cross, a constable, stationed at Pitt Town, deposed that he apprehended the prisoners as they were crossing the lagoon at the Litakaki Creek.  He took them into custody on suspicion that they were runaway prisoners from some iron gang.  They had a bag containing several articles with them.  [The witness here produced the bag and its contents.]  Prisoner Jones ran away through the lagoon, when witness threatening Jones he would shoot him if he did not stop, Jones made answer he would sooner be shot there and then, than be taken.  Witness, upon this, levelled his piece, which Jones observing, immediately surrendered himself prisoner.  He confessed having been a runaway from Newcastle for six months.  Both prisoners were then taken and brought in custody before the Windsor Bench.

One of the prisoners (Wilson) put a question to the first witness, asking him whether there was a chimney in the hut alleged to have been entered and robbed by them?  The witness answered in the negative.

In summing up the evidence, the learned Judge told the Jury that the ingenuity of the prisoner's question could be of no avail to him, for in this country the humblest bark hut was equally entitled to the protection of the law, with the largest mansion in the colony - because here in particular, the poor laboring man must occupy such a house as his master chooses to assign him to live in - and such a house was, in the eye of the law, to all intents and purposes, a dwelling-house.  His Honor observed, that the more general this fact was known, the better.  The Jury brought in both prisoner guilty.  Remanded.[2 ]


[1 ] On the adoption of the new criminal laws, see Applicability of Criminal Laws Opinion, 1828.

[2 ] Both were sentenced to death: Sydney Gazette, 19 December 1828; Australian, 19 December 1828.

Published by the Division of Law, Macquarie University