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

R v Pegg, Thompson, Anscomb and McDonald [1831] NSWSupC 56

stealing in dwelling house - police, mounted - bushrangers - capital punishment, attitude to

Supreme Court of New South Wales

Dowling J., 25 August 1831

Source: Sydney Gazette, 27 August 1831[1 ]

David Pegg, Thomas Thompson, and Richard Anscomb, were indicted for stealing, in the dwelling-house of William Henry Warland, at Hunter's River, five yards of linen cloth, one jacket, one coat, two waistcoats, four pairs of trowsers, five shirts, three blankets, 20lbs. of flour, 20lbs. of sugar, 5lbs. of tea, one compass, one eye-glass, six gimlets, and 5lbs. of  tobacco, on the 25th of April last.

The information also charged William McDonald, alias John Whitaker, for that he, on the 4th day of May last, one eye-glass, one compass, five yards of linen cloth, one shirt, and six gimblets, part and parcel of the goods so feloniously stolen, feloniously did receive and have; he, the said William McDonald alias John Whittaker, well knowing the same to have been stolen.

William Henry Warland said, I reside on Page's-river, a branch of the Hunter, and am a housekeeper; in the latter part of April I returned home, having been absent two or three days, and found that my house had been robbed; I found the overseer there, as I left him on leaving home; I missed some wearing apparel, flour, tobacco, gimblets, tea and sugar, altogether worth about £20 or more; in the month following I got some of my property from Mr. May and Mr. Bingle the Magistrate; I got a blue dress coat, a small telescope, a compass, some gimblets, and towels, which were part of the property taken away on the night of the robbery, as I was informed; when I left home, the property was in my dwelling-house, in care of the overseer.

George Morris. - I am an assigned servant to Mr. Edward Sparke; I know the prisoner, McDonald; I saw him at Darkbrook, sometime in April last; he was overseer to my master; I saw some duck cloth in his possession; there were three men there, and one of them gave it to him; there was enough to make a pair of trowsers; the men were strangers to me; the man who gave him the cloth said he got it of one Mr. Miller; I saw no eye-glass or compass; I cannot identify any of the prisoners except McDonald; the three men got something to eat, and remained an hour; they were each of them armed.

To the prisoner, McDonald. - When I first saw the three men I was coming up from the creek, and one of them presented a piece at me; I called out ``For God's sake don't shoot me, I'm only a new hand;" you called one of the men Dick, and said, ``I hear you are going to shoot me;" the man replied, ``I am not going to hurt you, but give us something to eat."

John Deane. - I am a corporal in the mounted police; on the 30th of April last, I apprehended the prisoners, Pegg, Thompson, and Anscombe, about nine miles from the farm of Mr. Edward Sparke; they were in a hut at Mr. Buchanan's station; they had three stand of arms with them; there was a free man in the hut at the time, who had charge of it; I apprehended them for being at large in the bush; I found with them one powder-horn, two gold seals, one silver pencil-case, and one snuff-box; I heard they had a compass and eye-glass, and asked thelm [sic] where they were; they said in the bush, but I could not find them; I took the prisoners into custody; on the 2d of May I went to apprehend McDonald; he was not at home, and I remained there all night; I searched the hut, but found none of the articles of which I was in search; I found an old shoe and a shirt; the prisoner McDonald went with me to the place where I apprehended the other prisoners; he was not in custody then; he went into the hut first, while I and my party, who had surrounded the hut, were making fast our horses; he might have been about two minutes in the hut before me; he appeared to know the prisoners; he said he knew them very well before they ran from their master, Mr. Miller, in whose service I had known them; they were out about twenty-one days Mr. Bingle; afterwards showed me the compass and eye-glass, but I do not know where they were found.

To McDonald - About three days before the other three men were taken, you told me, at Mr. Bingle's that they were often at your hut, and robbed you of your tea and sugar.

John O'Donnell - I am a constable; I produce a compass and an eye-glass, which the prisoner McDonald, delivered to Mr. Bingle, in my presence, on the 2d of May; he stated he had been in company with the corporal of the mounted police, and saw a bag in Mr. Buchannan's hut, which, being his, he took away with him; that on the way back he examined the bag, and found the compass and eye-glass in it; he also stated that he had a piece of linen cloth and a number of gimlets, which he had found in his hut, rolled up in his blanket, where they were not when he went away with the police, after the bush-rangers.

Thomas Herriot - I was at Mr. Buchannan's station when the three prisoners were apprehended by the police; there was another man with them, who brought an eye-glass and a compass with him, and put it underneath a bag which McDonald, who came with the police, claimed as having been stolen from him; McDonald, when he came into the hut, said ``where is my bag?" and one of the other prisoners said ``it is by the fire;" I had charge of the hut in which the three prisoners were found; they came there about 7 o'clock the previous evening; they went away next morning, and I went to report it to Mr. Miller, but when I was about halfway, I met them again on the road, and they made me turn back again with them, saying they ``could not do what they wanted."

Mr. Wardland recalled, identified the compass and eye-glass to be his property; witness left them safe in the house, a day or two previous to the robbery; they are worth about £2 15s.

This was the case for the prosecution.

His Honor told the Jury, that, in the absence of the evidence of the prosecutor's overseer, who was stated to have been in the house at the time the robbery was said to have been committed, they must dismiss the capital part of the charge against the three prisoners indicted as principals; inasmuch as there was no proof of property to the value of £5 having been stolen at any one time, which was necessary in order to support the information, under the Act of Parliament which constituted the stealing in a dwelling-house, to the value of £5, a capital felony.  If, however, the Jury believed, from the evidence before them, that the three prisoners were concerned in stealing the articles spoken to by the prosecutor, they might find them guilty of larceny.  With respect to the other prisoner, who was charged as a receiver, before they could find him guilty, they must be satisfied that he had a dominion over the articles found in his possession, with a guilty knowledge, previous to the apprehension of the principals.

The Jury found the prisoners, Pegg, Thompson and Anscomb, guilty of larceny; McDonald,guilty.[2 ]

Notes

[1 ] See also Australian, 26 August 1831; Sydney Herald, 29 August 1831.

[2 ] Pegg, Thompson and Anscomb were then tried and convicted again for another robbery, and were condemned to death.  Thompson was recommended for Crown mercy.  McDonald was also convicted of receiving the property taken in this offence.  When he was sentenced to 14 years' transportation, he said "I'd rather you'd pass the sentence of death on me, my Lord, and hang me at once."  Source: Sydney Gazette, 27 August 1831, and see Australian, 26 August 1831; Sydney Herald, 29 August 1831.

Pegg and Anscomb were executed on 26 September 1831: Sydney Gazette, 27 September 1831.

Published by the Division of Law, Macquarie University