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

R v Anderson, Macdonald, Thomas and Pope [1832] NSWSupC 89

Twofold Bay - stealing, in dwelling house, meaning of "dwelling house"

Supreme Court of New South Wales

Forbes C.J., 16 November 1832

Source: Sydney Gazette, 17 November 1832[1 ]

 

John Anderson, alias Henderson, Alexander McDonald, John Thomas, and George Pope,were jointly indicted for a burglary in the dwelling house of John Horden, at Congo, on the 3d of May last, putting John Little in bodily fear, and stealing therein divers articles of property above the value of £5, the goods and chattels of John Horden, William Furney Morris, and Francis Hunt.

John Little examined by the Attorney General - I am an assigned servant to Mr. Horden, and reside at Congo, near Twofold Bay; on the 3d of May last, M'Donald and a constable of Mr. Morris's came to my hut and told me that a boat had been wrecked; they said they were Mr. Morris's men, and had been eight days without provisions; I went and reported it to Mr. Hunt, who had charge of my master's establishment, and who told me to give them any thing they wanted, in consequence of which I returned and gave them a breakfast; next morning the constable went to Murramarrang to procure some pitch and tar to mend the boat; M'Donald remained with me till the 11th of May; on that morning when milking in the stockyard a little after sunrise, we heard the report of a musket.  M'Donald who was standing by me at the time said he thought it was some person come to look for him; he then proceeded to the sea-side, a quarter of a mile distant; directly Mr. Hunt heard the report of the musket, he came to me, and spoke of it; by his desire I went and put the muskets in the barn, lest any person should come to disturb us; there were two muskuts and a fowling-piece; having hid the muskets, I went down to the sea-side, to look what was going forward; I there saw a vessel at anchor, and Mr Morris's small boat lying alongside of her; when I saw the people land, I went to tell Mr. Hunt; all the prisoners except Thomas came ashore with a ma named Saunders, who reported himself to be the captain; they brought nothing ashore with them but a keg of water; when they came ashore a the point, Saunders told me that Mr. Morris had agreed with him for £10 to come in search of his men and his boat; they all came to my hut except the Captain who went to Hunt's; M'Donald, and the constable, after their boat was wrecked, went down to it, and fetched up a cross-cut saw, three tomahawks, a pig, a steel mill, some leather, and a cedar plank; when the Captain came, he ordered the man to put all the things belonging to Mr. Morris in the vessel; they did so, and returned back again, at which time I was in the dairy to me, and said, ``Young man, don't be alarmed, we're going to rob the place," and asked me where the muskets were; at this time they were all there except Thomas; I told them I knew nothing about them; but they said I did; Saunders and M'Donald, then went up to Mr. Hunt's hut, and I attempted to go to the dairy; Anderson and Pope, then tied my hands and feet, and Anderson went away; Pope shortly after followed him; shortly afterwards I got myself loosed; I was not afraid when they tied me; there was some butter and a piggin gone from the dairy when I examined it, which I think were taken by the prisoners; when I got loose, I hastened to inform Mr. Flanagan, who lives a few miles off; I did not see them take any thing from the hut.

By the jury - I allowed, the two men to tie me because they were stronger than me; they caught hold of me, threw me down, and tied me; it was against my will.

Examination continued - On the 15th of July myself and Henry Benson went to another station about three miles from Congo, and on our way we met with a black gin, who told us that ``there was croppies sit down there, and they carried two muskets:" Mr. Hunt then ordered us to get our muskets ready for protection; when we got within fifty rods of Mr. Hunt's we met M'Donald, Thomas, and Pope, who ran into the bush directly they saw us; we had among us two muskets, a fowling-piece, and a cutlass; Benson fired at them, they then stopped, and we made them prisoners; they had two muskets in their possession; Pope and Thomas had the muskets; I saw Anderson since at Mr. Thomson's, in custody, Mr. Hunt having taken him prisoner.

Cross-examined by Anderson - It was not you and Pope that tied me, but Pope and another.

By M'Donald - I did not say to the constable I would swear anything to get my ticket-of-leave; I did not tell the constable that you had no muskets; we afterwards pulled eight miles in the boat; I did not swear the boat was wrecked, but that she leaked.

By the Court - Saunders, Anderson, M'Donald, and Pope, were the men who came on shore from the boat, and they were not armed then.

Francis Hunt, examined by Mr. Moore - I reside at Congo, in Mr. Horden's employ; Congo is about thirty miles to the southward of Bateman's Bay' there are two huts on the farm, in one of which I live, and the assigned servant in the other; in May last, two persons came there, who were evidently in a weak state, and represented that in returning from Mr. Morris cattle station at Jervis' Bay, they had been driven out to sea, and without provisions for some days; their boat was in a damaged state, and I gave them provisions and tar; the prisoner M'Donald was one of them;' they brought several articles up with them; on a subsequent day, a two-masted boat anchored near the point; the party landed, and Anderson told me that he was master of the Jane of Sydney, and had been employed by Mr. Morris to look after his men; the prisoners M'Donald, Pope, and another man not before the Court, were with Anderson at the time; believing their story, I entertained them, and proceeded after some cattle into the bush; I was met on my return home by the blacks, who informed me that my place had been plundered; I hastened to the beach, and saw the boat standing off to the Southward under sail; Mr. Morris's boat was drifting in shore at the time; the oars and rudder were gone, and there was some sugar scattered about; we fetched the bullocks, and hauled the boat up; I found that some tea, sugar, a blanket, a boat cloak, a great coat, and some tools were gone; I could not bear any thing of Little till after dark, when he came to my hut with my other two men; the black-fellows, by my direction, made strict search for M'Donald, but he could not be found; Little had gone to another station to give the alarm; he brought back with him two of my own men and one of Mr. Flanagan's armed with a musket, which he had borrowed from Mr. Flanagan; about the 13th of July, on my way to another station, the blacks apprized me that some bushrangers were about, and meeting my two men, Little and Benson, we hastened to the huts and armed ourselves, directly on which the bushrangers approached; we came out and pursued them; they had two muskets, which they presented at us; I desired my men to draw back, but Benson rushed forward and fired upon them; they then ran again, and we pursued them to swampy creek; the bushrangers went round it and my party dashed through captured and them; after that, thinking there might be some more of them, I set a black to look out, who returned wounded, and stated that one of his comrades had been killed; from information he gave me, I proceeded with some blacks to a place some miles off, where I took the prisoner, who had on my coat and waistcoat, which he had stolen; I took Anderson as far as Captain M'Kellar's, when I gave him up to a special constable, from whom he escaped in the night.

By the prisoner Anderson - It was early in May when you came to my place; there was sufficient about the coat that I could identify it; I am sure it was my own coat.

By M'Donald - I did not swear that it might as well have been thick sticks as muskets, before the Bench of Magistrates; Little told me that you had interferred [sic] in his behalf, and saved him from being ill-used; John Little was not promised a ticket-of-leave and £5 if they swore against you; I told them that they should be rewarded if they captured you.

By Thomas - I am sure the muskets were presented at us; I did not see the blacks heave spears at you.

Henry Benson examined by Mr. Moore - I am an assigned servant to Mr. Benson, and was living in May last at one of his stations, near Congo, when that place was robbed; in July succeding [sic] I went in company with Mr. Hunt, John Little, and another man, in pursuit of some bushrangers, who, a black woman told us, were in the neighbourhood; we saw them about five rods from the house, and followed them to a swamp, through which I ran, having passed my companions, and secured the prisoners, M'Donald and Thomas; Mr. Hunt directed me and Little to take them to Parramarrago, which we did, and then gave them up to the constables.

Mr. Hunt re called - This great coat is the one which was taken out of my hut, and which I took from the person of the prisoners, Anderson, when I captured him.

Mr. George Galbraith was the next witness called, but after waiting above half an hour without his appearance, the Attorney General said he would not detain the Court any longer, and the prisoners were accordingly called upon for their defence.  Neither of them said any thing in their behalf; but the prisoner Pope called Mr. Sydney Stephen as to character, who deposed that he had been his assigned servant for two years and a half, during which period his conduct had been irreproachable.

The learned Judge, in putting the case to the Jury, remarked that the capital part of the indictment, which charged the prisoners with putting John Little in fear in the dwelling house could not be substantiated, inasmuch as it appeared from the evidence that Little was not in the dwelling-house at the time, but in a detached building.  They would therefore have to consider how far the other parts of the indictment were borne out by the evidence against all or any of the prisoners.

The jury after about half an hour's deliberation, returned a verdict of guilty against Anderson, M'Donald, and Pope, acquiting Thomas.

The Attorney General said, he would not now pray the judgment of the Court on the prisoners, there being a charge of piracy on the high seas to be preferred against Anderson, and other indictments against all the prisoners.

 

Forbes C.J., Dowling and Burton JJ, 23 February 1833

Source: Sydney Herald, 25 February 1833[2 ]

 

John Anderson, Alexander McDonald, and George Pope, convicted of stealing in the dwelling-house of John Horden, at Congo, above the value of £5, and putting John Little in bodily fear.  In arrest of judgment, Anderson observed to the Court that they were indicted for committing the offence at Argyle, when it was in no county at all.  The Chief Justice, in passing sentence, replied that there was no legal foundation for such an objection.  It was not true in fact, as the information charged the offence to have been committed at Congo, there was therefore no legal objection to it, or to the verdict found upon it. - The offence was most aggravated in its circumstances and character, and considering the fatal consequence of their crime, the Court had determined to pass sentence of death in all cases where violence was used in perpetrating such offences.  The sentence of death was then passed upon them all.

 

Notes

[1 ] See also Australian, 23 November 1832; Sydney Herald, 19 November 1832.  On 28 December 1832, the Australian, reported that Anderson the pirate was not captured by Captain Parish, but by two police troopers, near Jervis Bay, "after a very harassing search thro' the country for 150 miles."

On the meaning of ``dwelling house" see also R. v. James and Black, 1832, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 130 (summarised by Dowling J. as follows: ``Where a room in a public Inn was occupied by the Crown as a Post Office, of which the Post Master kept the key exclusively used it solely as an office, no person sleeping therein & it was broken entered & robbed in the night time.  Held that this could not be considered as the dwelling house of the Innkeeper, who received a rent from the Crown for the use of the room").  On theJames and Black case, see also Sydney Gazette, 11 February 1832;  Sydney Herald, 13 February 1832; Australian, 17 February 1832; and Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 62, p. 153, Archives Office of New South Wales, 2/3245.

[2 ] See also Sydney Gazette, 28 February 1833.

Published by the Division of Law, Macquarie University