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

R v Hunt and Baker [1830] NSWSupC 44

stealing, clothes, succession, title to goods on death

Supreme Court of New South Wales

Forbes C.J., 17 June 1830

Source: Sydney Gazette, 19 June 1830

Simon Hunt, and Richard Baker, were indicted for stealing sundry articles of wearing apparel, the property of our Sovereign Lord the King, at Penrith, on the 2d of April last.  A second count laid the property in some person or persons unknown.

The Attorney General conducted the prosecution.  Mr. Therry appeared for the defence.

The evidence in this case was the evidence of circumstances, or, rather, the evidence of inference.  It appeared from the testimony of the witnesses, that about the month of February last, it was a matter of report, that a man named Samuel Martin, employed as a market man to Mr. Murray, of Erskine Park, fell from a dray on the road to Sydney, and was conveyed to the General Hospital, where he died of the hurts he had received, ou [sic] the 26th of the same month.  So much of the evidence was mere report, as none of the witnesses could speak of their own knowledge, that this occurrence took place, had ever seen Samuel Martin, or known that such a person was employed at Erskine Park.

It appeared, however, from direct testimony, that on, or about the day laid in the information, the prisoner, Hunt, said to Baker, who was then in the service of Mr. Murray at Erskine Park, ``Samuel Martin has died in the General Hospital, and will not trouble this place any more."  Baker replied, ``He left his trunk in my charge, but not the key."  Hunt then said, ``I heard that his master settled with him a short time before, and we might as well have what he has left behind, as any one else."  The witness who spoke to having overhead this conversation, then went on to say, that he saw Hunt, through a chink in the partition, break open a box which was in the dairy, with an axe, given him by Graham, and take out some clothes, consisting of trowsers, waistcoats, a blue jacket, and other articles, similar to those produced before the Court.  It further appeared, on the evidence of a female servant to Mr. Hook, at Bayley Park, that on or about the time stated in the information, the two prisoners came to her master's house, at night, with the clothes spoken to by the last witness, tied up in a bundle, and that Baker requested her to put them before the fire to dry for him by the time he should return; that she did so, but did not see either of the prisoners again; and that the clothes were afterwards claimed by, and handed over to, Mr. Murray, at Erskine Park.  A tailor residing in Sydney was then called, who proved that he made the clothes shown to him, for a man named Sam (he knew him by no other name), who lived up the country; that he afterwards heard he was dead, and remarked at the time, that he had lost nine-and-sixpence by him, which remained due for the clothes.  A clerk in the General Hospital was also called, who proved that a man named Samuel Martin was received into the hospital on the 2d, and died there on the 26th of February last.  He was buried at the expense of the Government.  This was the case for the prosecution.

Mr. Therry submitted, that the information could not be supported on the ground of uncertainty, as it had been held that all indictments were bad wherein the name of the owner of the property, if it were, or might be known, was not inserted.

The Attorney General contended that, on the first count alone, the information was good.  The property of all intestates vested in the king, until executors were appointed.  Besides property might be laid in the person by whom the expense of the funeral was defrayed; and, it was in evidence that the deceased man, Martin, was buried at the expense of the government.  With respect to the second count, it had been introduced ex abundantia.[1 ] The Court knew that robberies might be committed and the parties convicted without it being possible to ascertain who the individual was to whom the property belonged.  It would, in such a case, be sufficient to lay it in some person or persons unknown; and he submitted that none of the witnesses on the present trial spoke with any certainty of the deceased.  Some had merely heard of such a person, and others knew nothing more of him than that he went by the name of Sam.

Mr. Therry replied.

The learned Judge summed up the evidence.  His Honor told the Jury that the case was not one so much of evidence, as of that moral conviction which the inferential testimony that had been laid before them might produce on their minds.  Taking the whole of the evidence together, if the Jury should be of opinion that a man named Samuel Martin had come to his death in the manner described; that the man who was known to the tailor as Sam, and for whom he made the articles before the Court was that Samuel Martin, and further that he was the Samuel Martin of whom the prisoners were heard to speak, then the evidence as it affected them rested altogether upon the effect which the conversation deposed by the first witness should have upon their minds.  Hearing that Samuel Martin was dead, and he having left his trunk in charge of one of the prisoners, did he, however erroneously, really believe that the property so left in his care became his?  That was the main question for the Jury; because, if the prisoner did really think so, then the animus furandi[2 ] was wanting, and they were entitled to their acquittal.  With respect to the objections which had been taken to the information, His Honor did not think there was any weight in them.  In the mother country the effects of a person dying intestate vest in the ordinary until executors are appointed.  In this colony, however, the king was the only ordinary; and it was through the Royal Charter issued by virtue of an Act of Parliament that the Supreme Court possessed the power of granting letters of administration.  In the first count, therefore he was of opinion, that the property was well laid; and with respect to the second which had been introduced for more abundant caution, the articles could not have been laid as the property of a dead man, and no executors having been appointed, it had been properly laid in person unknown.  Either way, therefore, the information was sustainable.

The Jury retired for some time, and returned a verdict of Not Guilty.



[1 ] Ex abundanti cautela: from excessive caution.

[2 ] Intention to steal.

Published by the Division of Law, Macquarie University