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

R v Dixon [1833] NSWSupC 99

burglary - Bathurst - stealing, sheep - sentencing discretion - jury, hung jury - Crown mercy

Supreme Court of New South Wales

Dowling J., 11 November 1833

Source: Sydney Herald, 14 November 1833[1 ]

James Dixon stood indicted of having on the 28th of August last, attempted to enter the house of William Cuff, at Bathurst, with intent to commit a robbery.

William Cuff deposed to his having been called up by his servant Ellen Smith, after twelve o'clock at night, who informed him that a man had attempted to get into her room for the purpose of robbing the house; that on going to the door the man was gone.

Ellen Smith was called, who stated the she knew William Cuff, and that he was her master; she knew the prisoner at the bar four or five months before this charge took place; they were going to be married once, and had been out-asked in Church, but no particular day was fixed; on the 28th of August last, between twelve and one o'clock at night, I heard a noise at the window of my room, I looked out and saw a man with his head in at the window; there is no frame or casement; the shutter was fastened inside by a string; the man put out his head, put in his feet, and sat on the window ledge; I asked what he wanted; he seemed surprised, asked pardon, said he was tipsey, and had made a mistake in the house, and that he did not come to rob me; I called to my master, and said there was somebody in the house, and when he came down the man was gone; he was the man Dixon, that I was asked to in Church; we had then been about four weeks over-asked; I cannot tell if he came to pay me a visit; he had been several times, but never at such a late hour; I had made no appointment with him; Dixon's house is similar to my master's in appearance; a man in liquor might mistake one for the other.

Prisoner asked the witness Smith, if the door was broken open that night? and said, you wish to get me into trouble.

Witness stated that a washing tub had been lost, and she asked prisoner, before her master and mistress, if he had taken it, which he denied, and no more was said about it; they never quarreled; there was a piece of work; he went three days from Bathurst, and then said he would not have me, and he had no place to take me to.

No other witness being called for the prosecution, Judge Dowling carefully recapitulated the evidence, and stated, that in the eye of the law, if a man's finger only were in the house with a felonious intent, it was as criminal as if his whole body were there.  The prisoner had said he was tipsey, and had made a mistake in the house; and the Jury had to consider whether, as he had been out-asked in Church to the last witness, he had come at that late hour to break his faith with her; this was possible in the frailty of nature.  His Honor though the case too weak to commit.

The Jury without retiring acquitted the prisoner.

James Dixon was detained at the bar, being indicted for attempting to steal a sheep at Bathurst, the property of former prosecutor, William Cuff, on the night of the 28th of August last.

Daniel Hyland examined. - I am a shepherd to Mr. Cuff; I had gone to bed early, and was awoke by the barking of the dog about one or two o'clock in the morning; I went out to the sheep-fold, and saw the prisoner Dixon going away with a sheep which he had tied round the four legs with stringy bark; I saw him going across the fence; I did pen up the sheep the night before; I went up to prisoner who bolted away after giving me two thumps; he left the sheep tied up in the sheep yard; it was not lifted over the fence; he was not lifting the sheep when I saw him; he was over the fence; he left a whip (produced to witness), and about a pint of wine in a bottle, behind him; I saw him round the yard when he ran away, after making choice of a sheep and beating me; I am sixty-eight years of age; have been in this country about six years; was sent here for a horse; tried at Cork, and sent here for life; it was a bright night, but no moon, when I saw Dixon at the sheep-yard; me eye-sight is good, but I cannot read or write; prisoner gammoned he was drunk.

Prisoner exclaimed - Oh, Dan! I'm sorry for you Dan! Oh, Dan! to take life away - you never saw me that night. -

Witness rejoined - ``Oh! that's the big robber in Ireland."  Dixon was taken up next morning; he lived about sixty rods off; has no sheep or cattle of his own: I know Ellen Smith; he was making love to her I heard; she did not put me up to this business.

Prisoner exclaimed - Oh, Dan! you are swearing wrong there.

William Cuff called. - I am living at Bathurst; I know nothing more than Daniel told me, that Dixon had taken a sheep in the night, intending to take it away; Dixon had left a whip and part of a bottle of wine; I think that is the same whip that I saw him driving a pig with the day before; Dixon was taken into custody the same day as I heard of the intended robbery, and put in gaol at Bathurst; it was the same night when he attempted to get into my house; he denied it before the Magistrate; Daniel Hyland has been in my service two years; he has tender eyes, but can see well; he could not be mistaken; he knows prisoner well.

Judge. - How many sheep had you at this time?

Prosecutor. - I cannot exactly tell.

Judge.  How can you be called a sheep farmer, if you do not count them every night?  I am afraid you are not a good farmer Mr. Cuff?  How long have you been a Settler?

Prosecutor. - Near five years.

Judge. - Have you any reason to know that this case is got up between your servants, the shepherd, and Ellen Smith?

Prosecutor. - No.  I don't think it is.

His Honor then called up the prisoner for his defence.

Prisoner. - My Lord, I am innocent of this charge; I have always worked hard for my living; I have no witnesses; nobody has said any thing about me.

His Honor in addressing the Jury, entreated them to come to their decision in the present case, as though nothing had happened before.  The prisoner stood charged with having stolen, or attempted to steal, one sheep.  You are to consider whether or not, he had feloniously stolen the sheep in question.  In law, in order to constitute the felony, although the sheep was not got out of the fold, it being tied by the legs, if not removed an inch, was sufficient to perfect the intent.  You have only the evidence of an old man aged sixty-eight; and the question is, whether you are satisfied that he has faculty to state what he saw.  He disclaims any knowledge of, or connivance with the young woman in this case.  The prisoner had been a neighbour of the prosecutor for six months, and was known to the shepherd.  Did the latter invent the story to tell his master?  He had received two blows in the struggle.  A point for consideration is, that prisoner suggests some conspiracy on account of his not keeping promise with that young woman.  You will think whether the old man be a false witness or otherwise, and come to your decision accordingly.

The Jury could not agree in their verdict, and after the Registrar had read the Act, which enforced locking up, being kept without food, &c., until they were unanimous; the Jury retired in custody of an armed constable, who was sworn to preserve entire seclusion.  After deliberating full two hours, the Jury returned into Court - yet not entirely agreed.

His Honor said, then you must again be locked up Gentlemen; that is the law.  I have no power to relieve you.  Another consultation then took place in the box, and after some time, the Jury pronounced the prisoner Guilty, but recommended him to mercy.  ``On what ground?" enquired His Honor.  ``On account of the age of the old man," replied the Jury.  ``Oh!" said His Honor ``that will not do, that cannot be.  You have given your verdict, and the age of the witness has nothing to do with it."  The Jury again consulted, when they desired to know something of the prisoner's former conduct.  Two of the constables at Bathurst were then called, who severally stated, that they had known the prisoner some years; that he had occasionally got drunk, and was fined; but that they had not heard any thing else against his character.  Here, Captain Steel, J. P., at Bathurst, came forward from the back of the Court toward His Honor, and declared that he could bring a charge against the prisoner.  His Honor checked this ardour; and Mr. Steel retired.

The Jury, at length, recommended the prisoner to mercy, on account of his former good character; and His Honor said the recommendation should be laid before the Governor in Council, where it would have due consideration.  His Honor, after an address to the prisoner, passed sentence on him of - Transportation for life.

[Out of eight cases put down for trial this day, there were but two that demanded a Civil Jury; the remainder preferring a Military Commission.



[1 ] See also Australian, 15 November 1833; Dowling, Proceedings of the Supreme Court, Vol. 91, State Records of New South Wales, 2/3274, pp 15, 20.

Published by the Division of Law, Macquarie University