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

R v Finch (1830) NSW Sel Cas (Dowling) 330; [1830] NSWSupC 56

women defendants in crime, receiving stolen goods, entrapment, Female Factory

Supreme Court of New South Wales

Trial, 30 August 1830

Source: Sydney Gazette, 31 August 1830

 

Frances Finch was indicted for receiving two dishes and five plates, the property of Mr. Joseph Underwood, at Longbottom, knowing the same to have been stolen, on the 20th August.

In this case, it appeared that the stores of Mr. Joseph Underwood, who resides on the Parramatta-road, had been frequently plundered of various articles, as he supposed, by some of his own servants.  At length he received information from one of them, an accomplice, who stated that he, together with another man named Price, had committed the various robberies, and that the goods were disposed of to the prisoner, who is the wife of the proprietor of the Ship Inn, contiguous to the residence of the prosecutor.  A plan was accordingly laid, and Mr. Underwood having marked some articles of china ware, desired the informer to let Prince have the key of the store when a robbery was next contemplated.  In pursuance of these instructions, the informer, on a subsequent occasion, permitted Price to go into the store, and take away the articles laid in the information, and which were subsequently traced to, and found in, the possession of the prisoner.

Mr. Rowe, who defended the prisoner, contended that, in law, the information could not be supported, inasmuch as it appeared from the evidence that the property found in the possession of the prisoner was taken invito domino, and consequently no larceny in the principal felon.

The Learned Judge stated, that he would put the case to the Jury, to say, whether the taking, as respected Price, was with the consent of Mr. Underwood; and if not, whether the prisoner received the property, knowing it to be stolen.  If he should be in error, the Counsel for the prisoner would hereafter have an opportunity of taking the opinion of the full Court on the point.

Mr. W. H. Moore was then called, and gave the prisoner a most excellent character.

His Honor summed up the evidence, and left it to the Jury to say, whether, under all the circumstances, the taking by Price was with the consent of the prosecutor?  if they should be of opinion that it was, then there was no larceny, and the prisoner must be acquitted.

The Jury found a verdict of - Guilty.  Remanded.

 

Forbes C.J., Stephen and Dowling JJ, 4 September 1830

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466

[p. 24]

Where a Master was informed by one of servants that on a particular night. another of [p.25] his servants intended to steal his goods whereupon the Master marked some goods to know them again and placed a Constable to watch and apprehend the thief and see whither he carried them, in order to detect the receiver, & the theft was then committed by the Masters connivance and the parties concerned were taken with the goods in their possession:  Held that this was larceny notwithstanding the Masters supposed consent to taking of the goods the thief not knowing that his master had been apprized of the intended theft.

 

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 47, Archives Office of New South Wales, 2/3230

 

[p. 147]

In Banco.

Coram

Forbes CJ

Stephen J

Dowling J

Indictment against the prisoner for feloniously receiving certain chattels, the goods of Joseph Underwood, knowing them to have been stolen.  At trial before Stephen J. on the 30th Ultimo the facts proved in evidence were these:-

The prisoner having been informed by a servant of his named McHue, that another of his servants named Price intended to rob him on a particular night, and having lost several articles of property which he suspected were received by some person in the neighbourhood, whom he wished to detect, he caused some [p. 148] marked plates to be placed in a dairy adjoining his dwelling house.  He then locked the door, and caused the key to be hung upon a nail in the kitchen, where Price could get at it.  No interruption was given to Price, who, in the night time took down the key, with his master's knowledge, opened the dairy door, & took away the marked plates.  A constable had been stationed in a place of concealment to watch whither he took the property.  He was traced to the house of the prisoner Francis Finch who lived in the neighbourhood, & shortly afterwards the goods in question were found in his possession.

[p. 149] No communication had taken place between Underwood & Price , & the latter was ignorant that his master was acquainted with his design of taking the plates.  It was objected at the trial on the part of the prisoner that this was not a felonious taking of the goods in Price, they having been taken with the owners knowledge, priority and consent, & consequently the receiver could not be convicted.  The Judge however ruled that the taking by Price was felonious & the prisoner Finch was found guilty.  Price had been summarily dealt with by the Magistrates as a prisoner of the Crown, for stealing the plates.

The prisoner being now brought up for judgement, [p. 150] Rowe  contended that the taking by Price was not felonious.  There is no larceny here committed by Price, & consequently the indictment as to the prisoner must fall to the ground.  Larceny is defined to be[1 ]  (In Hammon's case 2 Leach 1189 Grose J in delivering the opinion of the Court said that the meaning of larceny is, ``the felonious taking of the goods of another, without his consent, & against his will, with intent to convert them to the use of the taker.") ``The wrongful or fraudulent taking & carrying away by any person of the mere personal goods of another from any place with a felonious intent to convert them to his (the taker's) own use, & make them his own property without the consent of the owner."  Now as the Prosecutor here consented to the taking of the goods in question, by Price., it cannot be said that he took the goods feloniously..-

[p. 151] Recited R v Egginton 2 B & P 508

A.G. contra was stopped by the Court.

Forbes C.J. I taking it that the consent alluded to in the definition must be understood where the owner of the property consents absolutely that the party shall convert it to his own use.  There is no such consent here proved, and therefore the taking is in Price felonious as far as he is concerned, although the master does not prevent a felony which he knows is about to be committed.-

Dowling J.  I think this conviction is right.  The Consent of the owner, if it can be so called, is qualified.  It is not an absolute permission to the taker to convert the property to his own use.  He winks at the robbery for the ulterior [p. 152] purpose of detecting the receiver.  It is no less a larcenous taking in Price, whether the master did not prevent his taking the property.  He cannot as a wrong doer, defend himself by the conduct of the master, who consents only so far as is necessary to bring him & his accomplices to justice.  The very case cited of Rex v Egginton is decisive to shew that here a larceny has been committed.  There a servant being solicited to become an accomplice in robbing his masters house, informed his master of it, & the master thereupon told him to carry on the affair, consented to his [p. 153] opening the door leading to the premises, and to his being with the robbers during the robbery, and also marked his property, & laid it in a place where the robbers were expected to come, & it was holden that this conduct of the master was no defence to an indictment against the robbers.  In the present case all the circumstances negative such a consent in Mr Underwood as shall excuse Price of the charge of larceny.  The master marks the plates? Why? - In order that he shall know them again. - He stations a constable to way lay him? Why? - That he may be detected & brought to justice. - These circumstances are decisive to negative a consent to convert to his own use.-

[p. 154]  Stephen. J. concurred.

The prisoner was sentenced to 12 Months imprisonment in the Factory[2 ] of Parramatta.

 

Notes

[1 ] Marginal note in manuscript: "2 Earl P. C. 552".

[2 ] See also Sydney Gazette, 7 September 1830; Australian, 10 September 1830.  The Sydney Gazette stated that she was sentenced to be placed in the first class at the Female Factory for one year.

The reference is to the Female Factory, which was simultaneously a prison, a barracks for female convicts, a factory, and a marriage bureau.  See A. Salt, These Outcast Women: the Parramatta Female Factory 1821-1848, Hale and Iremonger, Sydney, 1984. On the management of the factory, see Historical Records of Australia, Series 1, Vol. 12, pp 524-528.

Published by the Division of Law, Macquarie University