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

R v Felton and Grey [1833] NSWSupC 4

burglary - married women's legal disabilities - death, presumption of

Supreme Court of New South Wales

Dowling J., 11 February 1833

Source: Sydney Gazette, 12 February 1833

James Felton and John Grey, stood indicted for burglariously breaking and entering the dwelling house of Luke Dillion, on the 7th January, 1833, at Bathurst, and taking therefrom, 1 bag, value 6d., 20 pieces silver called half-crowns, 20 pieces called shilling, 30 pieces called sixpences, and a draw containing 300 pieces called pence, the property of Luke Dillon as aforesaid.  Other counts charged the prisoners with larceny, with attempt to steal &c. &c.

The prisoners were defended by Mr. Rowe

The first witness examined was -

Mary Dillon - I reside at Bathurst; I keep an inn; I remember the evening of the 6th of January; it was Sunday evening; I retire to rest about ten o'clock, taking particular care to secure the premises in all parts as usual; no person slept in the house with me expecting a little girl; there were two male servants in my employ who slept in a kitchen at some distance; the kitchen is quite detached from the house; in the middle of the night I was disturbed with a noise, as if some person being in the house; on looking into the room, I saw a tall man with a razor in his hand; I was apprehensive of personal danger from the appearance of the person, and did not immediately stir or make any noise; there was a small ticking bag in my bedroom, in which I had deposited about £5 in silver of the coins specified in the indictment, which the prisoner took away; I have not since seen it; I arose and proceeded to the window, which I found open; part of the shutters and sash having been broken in order to remove the nail with which I had fastened it the previous evening; I imagine it was then about one o'clock in the morning of the 7th January; the moon which then shone with great splendour enabled me, notwithstanding my agitation, to recognize the person and features of the prisoner Felton, whom I had seen before in my tap-room; he was then in the verandah; the person of the prisoner Gray was quite unknown to me, but it struck me that I should be able to point him out from his size and the colour of his hair, which was dark; I saw both men leave the verandah; I have no hesitation in saying the prisoners are those men; one of my servants came on hearing the alarm, in order to render assistance, the other did not; gave information to Mr. Watson, chief constable, who found two pair of shoes on the premises, which were next day recognized by two other witnesses as belonging to the prisoners at the bar.

Cross-examined by Mr. Rowe - Have not seen my husband, Mr. Luke Dillon, for some years; we separated about 5 or 6 years ago in consequence of a mutual domestic arrangement; I believe he went to England; cannot speak as to his intention not to return to the country; the house and furniture I have in my own name, as also the license; I have found satisfactory sureties for the conduct and management of the said inn.

[The learned counsel here stated to the Court that the indictment must fall to the ground, the husband of the prosecutrix having been absent many years; as there was no proof that he was not dead, could not be recognized as having any interest in the property stated in the indictment to have been stolen from him; whereas the house, furniture, license, &c. was proved I evidence to be solely in the occupation and disposal of the prosecutrix.]

The learned Judge having detailed to the Jury the law of the case, and overruled the objection taken by Mr. Rowe, observing that the burthen of proof, as to the death of the husband of the prosecutrix, rested on the shoulders of the prisoners, the law presuming a person to be alive in the absence of proof to the contrary.  The case then proceeded.

William Hudson examined - I was servant to Mrs Dillon, of Bathurst, on the day laid in the indictment; I was awaked by an alarm in the house; another man who slept in the kitchen with me had arise, but I did not; I had lain awake for some time when my mistress came into the kitchen and called me by my name; I answered; when she told me I was not wanted; after remaining for some time I arose and went into the bar; my mistress appeared to suspect that I was one of the party who had been concerned in the robbery, and I was minutely examined and turned round by my mistress, who observed that the person was about my size, and had dark hair similar to mine; I was then sent to inform the Chief Constable of the transaction.

Cross-examined by Mr. Rowe - I am very certain that my mistress said to me what caused me to believe I was suspected; I have since left her service in consequence; I did not remain longer than the Wednesday week following.

By the Court - I went to the residence of the prisoner, and found he was not in bed; it was not suspected by the person residing with him that he had not been in bed; his absence was a matter of surprise.

William Webb - I am a shoemaker by trade, and reside near Alloway Bank, the estate of Captain Piper, by whom I was occasionally employed as a musician; as a shoemaker I work for my own advantage; I know the prisoner at the bar; he is an assigned servant to Captain Piper; I remember the shoes now produced; I repaired them for the prisoner Grey; they did not appear to be made for him; they were of a small size, like those of a woman; remember having seen them on the prisoner Grey on the Sunday morning previous to the robbery.

John Coller examined - I am a shoemaker at Captain Piper's; I remember making a pair of shoes for the prisoner Felton, about 5 month's ago; those now produced are the same.

Cross-examined by Mr. Rowe - Shoes will not generally wear so long if constantly worn; it is a very long time to wear a pair of shoes; I do not know the pincers now produced, I have seen a smaller pair at Captain Piper's, but cannot say they are the same.

Mary Dillon recalled, and cross-examined by Mr. Rowe - I did not accuse the witness Hudson of being concerned in the robbery; did certainly consider it strange that he remained in bed instead of rising to render assistance; but it afterwards occurred to me, that he had received a severe fall from a horse the previous day, and hurt his back; I was quite satisfied; I never charged two men, named Crowie and Tracey, with the robbery; observed the men had some resemblance to them; nothing further.

Isaac Watson - I am Chief Constable of the district of Bathurst; I remember being informed of a robbery which had been committed in the day laid in the indictment a Mrs. Dillon's; I found the premises had been entered by forcibly removing the fastenings of the window of the house; a drawer, containing some copper money had been found near the house in which were the pincers now produced; the two pair of shoes now produced were found under the verandah; they were subsequently tried on the prisoners and found to fit them exactly, I took the prisoner Felton into custody at a very early hour in the morning of the 7th January; he was without shoes; the other prisoner was taken some time after.

The evidence for the prosecution being closed, the prisoner Felton stated in his defence, that having gone the preceding evening to an adjacent farm, he had taken a few glasses of spirits, which having overcome him he lay down, and found on waking he had been robbed of his hat and shoes; he arose and proceeded towards home, when he met the Chief Constable and Mrs. Dillon, who took him into custody.  The Jury returned for a few minutes, when a verdict of guilty was returned.

The learned Judge having intimated to the prisoners the very narrow escape they had from an ignominious death, under the influence of some point of law, ordered judgment of death to be recorded.

Published by the Division of Law, Macquarie University