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

R. v. Cullen, Doyle and Walsh [1834] NSWSupC 84

stealing, cattle - Bathurst

Supreme Court of New South Wales

Forbes C.J., 4 August 1834

Source: Sydney Herald, 11 August 1834[ 1]

Before His Honor the Chief Justice and a Civil Jury.

Bartholomew Cullen, John Doyle, and John Walsh, were indicted for stealing and slaying one ox, the property of Major General William Stewart, at Bathurst; and Joseph Henry Barsden and Timothy Sullivan, for receiving fifty pounds weight of the dead carcase of the animal, knowing it to have been stolen.  Dr. Wardell and Mr. Wentworth for the prosecution.

Isaac Watson examined. - I am chief constable at Bathurst, and am acquainted with all the five prisoners at the bar; have seen the prisoner Doyle before; remember seeing a quantity of meat in the possession of the prisoner, Walsh, on the 29th of April; at the time I saw the meat, a horse belonging to one of the Police Magistrates, which had been lost for some days, was found in the settlement, a short distance from the residence of the prisoner, Walsh, in a condition which led me to suspect some person had been using it for the purpose of running in cattle, and I went in the direction of Barsden's house, to see if I could discover the person who had brought him in; on going up to Barsden's I saw the prisoner, Walsh, wheeling a hind quarter of beef in a wheelbarrow, which he took into Barsden's; shortly after which, I saw him take another quarter to the house of the prisoner, Sullivan; the meat seemed to have been slovenly handled and very flabby, as if recently killed; I felt the beef, and remarked to him that it was a very fat beast; have known Walsh four or five years; I had had some reason to suspect Walsh's character since November last; it struck me at the time, from the quality of the meat and its general appearance, as being remarkable; I could not have supposed him possessed of so fine a beast without obtaining it dishonestly; I frequently saw him in Barsden's house; I have seen him in Sullivan's house also; my suspicions being excited, I called a constable, and went towards the place or gallows, as it is called, where Welsh slaughtered cattle occasionally; and, when within a little distance from it, I saw a man near the spot endeavouring to raise a horse, which was lying down, by kicking it in the sides; I also saw several men among some high weeds, called ``Fat hen," who, on perceiving us, ran off in different directions; the prisoners, Cullen and Doyle, were among the number; I ran as far as I could after one of the men, whom I know to be the prisoner, Cullen; he was about a hundred yards before me; while running, he dropt his hat, which he stopped to pick up; I then had a full view of his counternance, and saw his long yellow ringlets hanging down, which have since been cut off; I ran as far as I could, but being unable to overtake him I called after him, ``You d--thief, I know you," and returned; on obtaining a warrant to search Walsh's residence, I found a considerable quantity of fat in the house, and at a short distance a bullock's head was found, near which was a spade and a percussion gun; a portion of earth had been removed; it appeared to have been the intention of the parties to bury the head, had they not been disturbed; a saddle and a bridle were found among the weeds; a pair of fresh hoop horns, and the fore-quarters of a bullock, were also found near Welsh's residence; he lives in a sort of cave, apparently a sawpit, which has a roof thrown over it; the beef seemed to have been fresh killed; no regular butcher would have turned it out of hand in the state in which it then appeared; I proceeded to Barsden's house, and inquired if Walsh had not sold them some meat that morning; Mrs. Barsden informed me that he had, and on its being shewn to me I found it salted down; it is not customary to salt meat in such a state; I then went to Sullivan's and made a similar inquiry, when he informed me that he had purchased a quarter from Walsh; I saw the beef, in an outhouse where it had been hanging up, but the cord having broken it then lay on the ground; I have frequently seen Walsh slaughtering beef, and bringing it to the inhabitants on a wheelbarrow, but on this occasion it struck me from the appearance of the hind-quarter that he was never in possession of such a beast.

Cross examined. - I have myself bought beef from Walsh, when I had no reason to doubt his having obtained it honestly; there is some difficulty at times in obtaining fresh beef at Bathurst; according to an entry made in Barsden's books it appeared that three halfpence per pound had been given for it; I had seen Cullen on one occasion before this transaction; I stopped him in the street seeing him with a bonnet in his hand, but on his shewing me a pass I let him proceed; I know there is a man called ``Tantaragee," the colour of whose hair I believe is yellow; I had an indistinct recollection of Cullen's person, although I could not call him to mind; I did not see him for a month afterwards, when I recognised him as being the man who escaped from me.

George Wilson. - I was a constable at Bathurst in April last; on the 30th of that month I was sent to search Walsh's premises; in the hut I found a quantity of fat, and a bullock's hide a few yards from the door, buried underground; some native blacks who accompanied me discovered the head by pricking about the ground with a cutlass; the hide was branded WS on the off-side, with G on the ribs; Major-General Stewart identified it as his property; there were also two fore quarters of a bullock buried near the hut; I cannot swear it was not the brand of Mr. Suttor, Mr. Sherwin, or Mr. Street.

Thomas Edwards - I am attached to the Mounted Police; I apprehended the prisoner Cullen; in taking him to Bathurst I had some conversation with him; he observed that he never expected to get back to his master's, as the Chief Constable had a down upon him.

Cross-examined - I apprehended him suspecting him to be a bushranger from his being in company with a runaway female; I inferred from the prisoner's apprehension of the chief constable's conduct towards him, that he was conscious that the chief constable knew something affecting him.

Michael Connolly - I was a constable in April last; I remember meeting Welsh near Mr. Barsden's house, about the latter end of the month, wheeling some beef on a wheelbarrow; I remarked that the beef was very fat; I was called by the chief constable in consequence of his finding a horse on the settlement which had been missing, to go and see if I could find any person who had brought the horse in; the chief constable accompanied me; as we were crossing a paddock in the direction of Welsh's house, I saw a man peeping from the chimney, and subsequently another man at a short distance endeavouring to kick a horse up, who, on observing us, ran off; we followed one man but did not overtake him; as we were running, Watson said ``you d-d thief, I know you;" on returning, he said, ``I think Connolly, that's Cullen;" when we reached the hut, the chief constable left me to obtain a search warrant, desiring me to stay until his return; shortly afterwards Welsh returned, and asked me if I had been in the hut, when I informed him that I had; he then asked me if any other person had been there, when I replied no; he then took up an axe and approached me, his manner was such as to cause me to be apprehensive that his intentions were of a dangerous nature, and having no weapon of defence about my person, I moved from him; seeing that I was on my guard, he did not pursue me, but went towards a log of wood as if he were about to cut it; he gave a chop or two and then went into the hut, but came out muttering that there was no fire; the chief constable brought a warrant and the hut was searched; a quantity of tobacco, and some fat, were found there; I did not see a bullock's heart; I know a man called Tantaragee, he is in the bush; his hair, I think, is light brown; I could not identify the person of the prisoner, the distance being too great between us.

Major General Stewart - A hide was produced to me at the Police Office; I recognised it as my property; it had been taken from a beast, one of four which had been selected from a herd of one hundred and eighty or one hundred and ninety, in order to be broken in to work; none of my cattle had been sold lately; there was a sale of thirty or forty about twelve months ago, to Mr. Charles Smith, but none since that time; several oxen have lately been missed from my herd; the return of that month exhibits a deficiency of about forty head.  This closed the prosecution for the defence.

David Perrier - The prisoner Cullen is my assigned servant; has been with me about three years; his character has been very good during that time; I consider him an honest man; I was at home all the month of April; if he had been absent he would have been reported to me; he was not reported; I think I have heard of his being charged with the robbery of £70 or £80 in specie, taken from a Policeman on the road; I do not remember hearing of a quantity of stolen property having been found in his hut; I cannot answer for his honesty beyond myself, I am not aware that he had an extensive acquaintance with bushrangers; I will not swear, but I believe he was on the farm on the 29th April; I might have sent him to Bathurst on that day.

Patrick Magheran - I am overseer to Mr. Perrier; I know the prisoner Cullen, he was assigned to my master; I remember the 29th of April; he was employed on that day cleaning the windows which had been dirtied by the plasterers, in a new house my master is building; he was employed there all day in my presence; I know it was the 29th day of the month, the day, before my master removed into it; my master removed into it on the 30th.

Several other witnesses were called as to the character of the prisoner Welsh, and the manner in which he obtained his livelihood.  His Honor having put the case to the Jury, they retired for the space of ten minutes, and returned a verdict of Guilty against John Welsh; the other prisoners Not Guilty.[2 ]

 

Notes

[1 ] See also Australian, 5 August 1834; Sydney Gazette, 5 August 1834; and see R. v. Cullen, Doyle and Murphy, 1834.

[ 2] This is not the only time Cullen escaped conviction: see also R. v. Cullen, Doyle and Murphy, 1834.

 

Published by the Division of Law, Macquarie University