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

R v Groves, Byrne and Wilson [1831] NSWSupC 54

burglary, dwelling house

Supreme Court of New South Wales

Stephen J., 19 August 1831

Source: Sydney Gazette, 23 August 1831[1 ]

John Groves, Daniel Byrne, and John Wilson, were indicted for a burglary in the dwelling-house of Mr. Robert How, in Pitt-street, Sydney, and stealing therein an iron chest, one doubloon, twelve dollars, fifteen dumps, two promissory notes for the payment of £1 each, two bills of exchange for the sum of £100 each, and two other bills of exchange for the sum of £290 each, the property of the said Robert How.

It appeared in evidence, that on the night of the 6th of June last, the dwelling-house of Mr. How, a merchant residing in Pitt-street, Sydney, was burglariously entered by some person or persons, and the propertty [sic] stated in the information carried off the premises.  On the following morning, the iron chest was discovered in the Government Domain, by a constable stationed there, and delivered up to the custody of the police, who were then in active search after the robbers.  It further appeared, upon the evidence of a man who resided in the same house with the prisoner, Groves, that about three o'clock in the morning of the 5th of June, about the time when the robbery must have been effected, Groves came home, in company with the two other prisoners, bringing with them an iron chest which, after striking a light, they forced open by putting some gunpowder in the key-hole, and exploding it.  They then, in view of the witness, who lay in an adjoining room, and watched the proceedings of the prisoners through a chink in the partition, selected various papers from the chest, and set fire to several others on the floor; after which they left the house, taking the chest away with them.  The appearance of the iron chest found in the Domain, and identified as that stolen from the residence of Mr. How, corroborated that part of the testimony respecting the manner in which it had been forced open; and, according to the evidence of the Chief Constable, who made a minute search in the premises of Groves, the floor of the room in which these transactions were stated to have taken place, not only bore evident marks of a fire having recently been made on it, but a large quantity of paper tinder, which had ascended with the flame, was found adhering to the cobwebs on the roof.

The case for the prosecution having closed, Mr. F. Stephen, counsel for the prisoner, submitted that, upon the evidence, the information could not be supported.  The property alleged to have been stolen, was laid as the property of Mr. How; whereas, according to the testimony of that witness, he was agent for the house of Young and Co. of Leith, under an agreement by which he became a participator in the profits and losses of the concern, under particular circumstances; - he was in fact, a partner to a certain extent, and could not be viewed in the light of a bailiee [sic], having a mere qualified possession of the property.  From the evidence of Mr. How, it appeared that he had actually debitted Messrs. Young and Co. with the iron chest alleged to have been stolen; but, at the same time, he went on to state, that, as he had an interest in the business, he conceived he had also an interest in the chest.  Then with respect to the monies alleged to have been in it, Mr. How could not speak, of his own knowledge, - he being out of town when the robbery was committed, - that such monies were deposited there; but assuming that the chest did contain the several sums stated in the information.  Mr. How being in the habit of receiving consignments of goods from other persons besides Messrs. Young and Co., he could not state to whom those particular sums belonged.  Upon these grounds, therefore, he submitted that the evidence did not support the information laying the property in Mr. How.

Mr. Moore contended, if the Court should be of opinion that the possession being in Mr. How was not sufficient to sustain the information laying the property as his, that at all events, as the essence of the offence charged against the prisoners did not consist in the larceny, the case was complete against them, if the evidence was believed by the Jury.  If the intention of the prisoners, in breaking into the house, was to commit a larceny, the offence was established, although no larceny were committed; and here, he contended, the question whether the property stolen was Mr. How's property or not, formed no part of the case.

Mr. F. Stephen admitted, if the information had merely charged the prisoners with breaking and entering the dwelling-house, with intent to commit a larceny, that Mr. Moore's argument would be good; but having gone on to allege a larceny, the prosecutor was bound to prove it as laid.

Mr. Justice Stephen agreed with the Counsel of the Crown, that it was not necessary, in an information for burglary, to charge a larcency [sic]; and if the information here had merely charged the prisoners with breaking and entering the dwelling-house, with intent to commit a felony therein, it would have been sufficient.  But having gone on to allege a felonious taking of certain property, he thought that such an allegation could not be rejected, but must be proved as laid.  The evidence in this case did not support that part of the information which laid the property in Mr. How, and His Honor was therefore of opinion that the objection was valid, and the prisoners were entitled to an acquittal.

The Jury accordingly returned a verdict of not guilty, under the direction of the Court.

Notes

[1 ] See also Australian, 26 August 1831.

Published by the Division of Law, Macquarie University