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

R. v. Tennant, Ricks, Cane and Murphy [1828] NSWSupC 40

reception of English law, stealing, in dwelling house, sentencing discretion, guilty plea, autrefois acquit, bushrangers' justice, Argyle

Supreme Court of New South Wales

Dowling J., 30 May 1828

Source: Sydney Gazette, 2 June 1828

John Tennant, John Ricks, Thomas Cane, and James Murphy, were indicted for stealing in the dwelling house of Thomas Rose, two persons therein, namely John Farrell, and Thomas Simpson, being put in bodily fear, at Argyle, on the 21st of December, 1827.[1 ]

The prisoner Tennant, on being called on to plead to the information, answered, in the most reckless manner, "Guilty."

Mr. Justice Dowling - `Prisoner, are you aware of the consequences of that plea?

Prisoner - I don't care, my Lord, I am tired of my life, and as they seem determined on it, I am ready to die.  We were tried and sentenced to death the last Sessions, and have been kept on the chain in the cells ever since, and now we are brought up to be tried again.

The Attorney General - These prisoners, your Honor, were tried at the last Sessions, under a repealed statute.  The present information is for another offence altogether.

Mr. Justice Dowling. - Prisoner, I advise your [sic] to withdraw your p[l]ea, and take your trial; you are charged with a capital offence.

Prisoner - Guilty, my Lord, I am determined to plead guilty to every thing that may be said against me in this Court today.

After some further admonition from the learned Judge, Tennant answered "very well, not guilty then, if you like," and put himself upon his country.  The other prisoners replied in the same way, "O any thing you like, not guilty; you may try us in the easiest way to yourselves."

The Attorney General then stated the case to the Jury, and called

James Farrell. - I was hut-keeper at Mr. Rose's cattle station in Argyle, on the 21st of December last; on that day, four men armed, came up to me as I was standing at the door with the overseer, one of whom, the prisoner Tennant desired me to stand, or he would blow my brains out; I ran into the hut where he followed me, and asked me if I was going to shoot him; I told him I had nothing to shoot him with, and as I turned round to call to the overseer for assistance, the three other prisoners, Ricks, Cane, and Murphy, came into the hut, with pistols in their hands, and made the overseer sit down in one corner, ordering him, at the peril of his life, not to move hand or foot; I had known Tennant before; I was in pursuit of him in the July previous, and put twelve buck shots into him, but he got away.  On this day Tennant said to the overseer, "Now I'll shew you what I am going to take that man's life for," meaning mine; he then stripped off his shirt, and exhibited the marks of the wounds in his back, saying "this man shot me, and I'll shoot him now;" he then took hold of me, and told me to go down on my knees, and he would give me fifteen minutes to pray for my soul; I told him I would not go on my knees for him, and he then took me down towards the fireplace; I heard one of the other prisoners say "is this the rascal?" to which some answer was made, but I was in such terror at the moment that I do not know what or by whom; Tennant said "don't shoot him yet, until I have done with him; the overseer said to him, "I understand your name is Tennant, and whatever you do do not take life."  Tennant then said, that they would boy-whip me and not take my life, and as he had a boatswain of his own, I should have fifty lashes; they then tied me up to a post, and took down my trowsers, and Tennant ordered me to receive fifty lashes, which were inflicted by Ricks, with the buckle end of a strap, and when I was ordered by Tennant to be taken down, he gave me three additional lashes; I was severely hurt, and bled very much; the prisoners took an old carbine, and an old musket, worth altogether about 10s. out of the hut, but they were brought back by the overseer immediately.

Thomas Simpson. - I am overseer to Mr. Thomas Rose, in Argyle; on the morning of the 21st of December, between 6 and 7 o'clock, when the prisoners came to the hut where the last witness and I lived, Tennant asked me if I had any fire-arms in the hut; I told him there was an old musket and a carbine; he then asked if we had any ammunition; I told him that there was none, except a small bit of powder which I carried in a little box in my pocket, for the purpose of striking a light when in the bush; he took the box and shook a little bit of the powder out on the table, and desired Murphy to prime one of the muskets with it; he then directed Cane and Murphy to look out, and went himself to search about the hut to see if he could discover any more arms or ammunition, saying to me "now, if I find any more ammunition after what you have told me, I will serve you in the same way as I shall serve Farrell; he then told Farrell that he had a boatswain now, and having tied his hands and pinioned his arms said, "now, Farrell, recollect what I am going to do," Farrell answered "very well Tennant, shoot me now;"  Tennant then o[r]dered Ricks and Murphy to take a pistol in each hand, and stand before Farrell; I begged of Tennant not to take life, and he said "as you have begged his life, we'll child-flog him;" they then tied Farrell to a post, and having let down his trowsers, Tennant said to Ricks, "now you, boatswain, do your duty, flog him, and give him 50 lashes;" Ricks took off the leather belt which he wore around his waist, and which had a buckle at one end, and wrapping the small end round his finger, flogged Farrell with the buckle end; Farrell suffered very much, ; the blood flowed from the wounds inflicted by the buckle, and having, in his struggles, loosed himself from the cords that bound him to the post, he fell on the ground, and Ricks continued to flog him in that position; after the flogging they would not suffer him to button up his trowsers, but made him sit down naked on a form; Tennant, when they were going away, examined the musket and carbine, and told Murphy to take them out with him; I asked him not to take them away, but he said it was a rule with him to take all fire arms, but that, when they went from the hut, the arms should be left at the back of the stock yard, at the top of the hill, and I could bring them back again; before they went away, Murphy asked if we had any thing to give them to eat; I pointed to some bread on the shelf, and to the pot which was then on the fire, containing about three pounds of meat; Tennant said to Murphy, "don't take it, for they are short of provisions;" Murphy swore he would have some, and Tennant pointing out to him how much he should take, he cut a piece off, and put the remainder into the pot again; Cane, Murphy, and Ricks, went away first; Tennant stopped behind a little while after them, and told Farrell that he had another gang of ten men in the bush, and that he would send them to serve him the same way as he had done; I followed them out of the hut to the top of the hill, and asked Tennant if I might take the musket and carbine which were then lying against the stump of a tree; he said, "yes, take them away," and I brought them back to the hut; they were Mr. Rose's property; I never saw the prisoners afterwards till they were apprehended.

By the Court. - There were five or six shirts, and some boots and trowsers, in the hut, together with some household furniture, such as knives and forks, spoons, &c; the prisoners made no attempt to take any of these things; Tennant told the others that they must not touch any thing; I think the object of the prisoners in coming to the hut was to have revenge on Farrell, and not to commit a robbery.

Mr. Justice Dowling summed up the evidence, and told the Jury that the information against the prisoners was framed under an Act of Parliament of the 7th and 8th of George the Fourth, which rendered stealing to any amount in a dwelling-house, when the inmates were put in bodily fear, a capital felony.  The question, then, for their consideration, upon the evidence before them was, did the prisoners come to the hut where the transactions as described by the witnesses took place, with an intention to commit a robbery, or merely to wreak their ven[g]eance on the witness Farrell?[2 ]  Because, however they might be answerable to another charge, still, if the Jury were of opinion there was no intention to commit a robbery, or that the fire-arms stated to be removed from the hut in the manner described by the witnesses, were not so removed with the intention of being converted to the use of the prisoners, they would not, in point of law, be justified in finding a verdict of guilty upon that information.

The Jury retired for a short time, and returned into Court with a verdict of Not Guilty.

Mr. Justice Dowling. - A very proper verdict, Gentlemen, under this information; Mr. Attorney General, these men must be detained to answer for this most atrocious assault.

The prisoners were accordingly remanded.

Dowling J., 13 June 1828

Source: Sydney Gazette, 6 June 1828

John Tennant, Joseph Ricks, Thomas Cane, and James Murphy, for an aggravated assault on the person of James Farrell, to be imprisoned for the space of 6 calendar months.

These men, who had narrowly escaped the punishment of death on two former prosecutions on hearing their sentence, exclaimed, "God save the King, the Judge, and Jury!"[3 ]

Notes

[1 ] See also R. v. FlannaghanAustralian, 23 May 1828, for another prosecution under the new Peel legislation.  On the adoption of the new laws, see Application of Criminal Laws Opinion, 1828.

[2 ] According to Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 165, the defendants were found not guilty because "the object of the prisoners was to wreak their vengeance upon the inmates of the house and not to steal.  Held that the indictment was not supported, although part of the property was removed though not with a felonious intent."

Technical defences were not always successful.  In R. v. Yates, 3 May 1828, Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 87, Dowling J. held that "An indictment charging a burglary to have been committed in the dwelling house of James Robertson, and it appearing in evidence that the house was occupied by Margaret Robertson, the wife, whose husband was living in England apart from the wife, is well laid.  see 2. Russ. 927. 11. East. 301."

[3 ] The four were tried again on 9 September 1829 for robbery.  Tennant and Murphy were found guilty of larceny rather than on the capital charge, and the others not guilty: Australian, 11 September 1829; Sydney Gazette, 10 September 1829.  The Sydney Gazette, 22 September 1829, noted that they were once again acquitted on the capital part of the charge because the statutes under which they were indicted had been repealed.  Tennant and Murphy were sentenced to transportation for seven years, Murphy to two successive sentences: Sydney Gazette, 22 September 1829.

Published by the Division of Law, Macquarie University