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

R. v. Cuddy [1834] NSWSupC 114


Supreme Court of New South Wales

Dowling J., 3 November 1834

Source: Sydney Herald, 10 November 1834[1 ]

Monday. - Before his Honor Mr. Justice Dowling and a Jury of Civil inhabitants.

James Cuddy stood indicted for breaking and entering the dwelling-house of Charles Faunt, at Sydney, on the 27th September, with intent to commit a burglary.  The prosecutor stated, that on retiring to rest about eight o'clock on the evening of the 26th September, he imagined he had secured his house as usual; after having been in bed several hours, he heard an unusual noise in his bed-room, when he arose and proceeded to the front room, the window of which he found open; he called his wife and desired her to strike a light, fearing that something wrong had taken place: his wife immediately arose, and in searching for a candle put her hand on the prisoners head, when she screamed with affright.  The prosecutor sprang forward and seized him, desiring his wife not to open the door for the purpose of calling the watch, as he feared that he might have confederates outside; prosecutor told him if he offered any resistance he would knock his brains out, but he suffered himself to be quietly secured, the prisoner appeared perfectly sober; prosecutor thought he went into his house for a bad purpose; had never known him before, nor did he apologise for his being in that situation, saying he had made a mistake; prosecutor asked him who he was on his first seizing him, and he said he was a nailor, but nothing further; prosecutor answered, ``You are nailed now snug enough my lad;" nothing had been removed from its place; there were several articles of wearing apparel &c., about the room, and about twenty shillings in silver coin in a tea cup on the mantelpiece untouched; the prisoner must have opened the shutter to get in, which is usually fastened with a bar, which crosses it on the outside, and secured by a bolt and pin on the inside, which latter on this occasion had been omitted.

Francis Morra deposed, that the prisoner was in his employment, and had received his wages about six o'clock on the evening of Saturday the 26th September, after which he had not seen him; witness resided immediately opposite the residence of the prosecutor, and the prisoner's sleeping place is in a loft; the windows of witness' house are secured on a principle so widely differing from those of prosecutor, that it was not possible to mistake the one for the other.

The prisoner in his defence said, that he worked hard for his livelihood, and had taken a little too freely of spirits on that evening, when returning home he had mistaken the prosecutor's house for that of his master, where he resided, and appealed to the prosecutor, whether from his conduct he could imagine he intended to injure him, but prosecutor expressed his belief that he had gone there for no other purpose.

His Honour the Learned Judge stated to the Jury, that although there had been no actual breaking, yet, inasmuch as the prisoner had removed the ordinary fastenings, and had entered by the window, the fact of a burglarious entry was made out if they relied on the evidence. - Taking the prisoner's conduct throughout into consideration, and weighing it with the fact that the windows of his master were differently constructed from those by which he entered into the prosecutor's house; it was for them to say whether he had gone there by mistake having no felonious intention in such entry;[ 2] the Jury found a verdict of Guilty.  Sentence of death recorded.



[1 ] See also Sydney Gazette,  4 November 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3287, vol. 104, p. 128.

[2 ] The Sydney Gazette,  4 November 1834 reported that Dowling J. told the jury that ``the formalities which the law required in this case, were completely made out, and therefore that the only question remaining for them to consider was, with what intent did the prisoner enter the prosecutor's house?  If they thought it was with the intent to commit a larceny, they would say so by finding him guilty; but if they were of a contrary opinion, they would give him the benefit of their doubt by pronouncing a verdict of acquittal."

Published by the Division of Law, Macquarie University