Skip to Content

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

R. v. White, Leary and Price (1828) Sel Cas (Dowling) 11; [1828] NSWSupC 79

stealing, sheep, accessory to offence, in forma pauperis, witnesses' expenses, indictments, death recorded

Supreme Court of New South Wales

Hearing, 15 September 1828

Source: Australian, 17 September 1828


Isaac White, John Leary, and William Price, were severally placed in the dock, and arraigned upon a charge of sheep stealing.  The prisoners, on their arraignment, persisted for some moments in a refusal to plead to the information, assigning as a reason for such conduct, that they were undefended by Counsel, and were otherwise unprepared to go to trial in respect of witnesses on their behalf not being in attendance, owing to lack of means wherewith to subpoena them.

The Court here observed, that it must be matter of common notoriety among the prisoners in the gaol, that where they had not means to defray the expenses of witnesses, by making a representation of the circumstance through the governor of the gaol, care would be taken to procure the attendance of witnesses on trial.  The prisoners made answer, that they had given the required notice to a deputy officer in the gaol, who refused to listen to their application.  The Court allowed the prisoners to be remanded; the Sheriff being directed to make enquiry into the matter.


Forbes C.J., 30 September 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[pp 39-40]

[Where 4 prisoners were tried as principals in sheep stealing and it appeared that in the original taking two only were concerned & that they within an hour afterwards employed the

other prisoners to slaughter the sheep, telling them that they were stolen: Held by Stephen & Dowling Js that the latter prisoners could only be considered as accessaries after the fact.  An indictment charged prisoner with stealing 14 wethers and 14 sheep the Jury found him guilty

of stealing 14 sheep called wethers  Held that the latter part of the finding might be rejected, and the prisoner had judgment of death recorded against him.]


[p. 39]

Tuesday 30th Sept 1828

Rex versus White

      John Leary

Coram Forbes CJ

William Price

The prisoners were tried and convicted before Forbes CJ of Sheep stealing, and a point was reserved for the consideration of all the Judges, upon the following case: - The prisoner White and another man who was admitted as an approver, stole the sheep in question, and drove them home to their premises.  The prisoners Leary and Price were the assigned Servants of White, who within an hour from the first taking, employed Leary and Price to kill and salt the Sheep, he telling them during the operation of killing the sheep, that they had been stolen[.] Leary and Price were no parties in fact to the original taking.  Forbes CJ. directed the Jury that all the prisoners were in law principal Felons.

Stephen J. and Dowling J. were now of [p. 40] opinion that as Leary and Price were not parties to the original asperlation [sic] the subsequent act of killing and salting the Sheep only made them accessaries after the fact, and not principal Felons.  Forbes CJ. adhered to his original opinion, but in deference to our opinion declined passing sentence and ordered these two prisoners to be detained as receivers.

Rowe then moved to arrest the Judgment in Whites case for the following objection.  The indictment charged the prisoner with stealing 14 sheep and 14 wethers.  The Jury found the prisoner guilty of stealing 14 sheep called wethers.  He objected that as wethers were not mentioned in the Statute, the prisoner could have no judgment passed upon him,

Per Sed For Car.  The Jury have found the prisoner guilty of stealing 14 sheep, and we may reject the finding that they were wethers.  They [p. 41] are still sheep, though called wethers.

Sentence of death was recorded. [1 ]


[1 ] That is, White's sentence was death recorded, and the other two were discharged from the conviction: Sydney Gazette, 1 October 1828.  Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  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).

Published by the Division of Law, Macquarie University