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

R. v. McDonald [1834] NSWSupC 55

breaking and entering - Yass

Supreme Court of New South Wales

Burton J., 8 May 1834

Source: Sydney Herald, 12 May 1834[1 ]

James McDonald was indicted for breaking and entering the dwelling-house of Samuel Terry, on the 27th February, at Yass Plains, and taking therefrom one blunderbuss, four shirts, his property, and one jacket the property of James Brown.  The overseer of Mr. Terry's station, Bartholomew O'Connel, deposed that he left his hut on the day laid in the indictment secured on the outside by a bit of green hide, but the inside room door was locked; on his return he found the door had been broken open, and the house robbed of the articles before mentioned; he went to give information to a neighbour, who returned with him, and fell in with the prisoner and another man who were lying asleep on the ground, with the articles beside them; being armed they readily took them into custody; the companion of the prisoner has since lost his life in endeavouring to escape from the constable who was bringing them to Sydney.

His Honor in putting the case to the Jury, recommended to their consideration the frail nature of the outward fastenings, as stated by the prosecutor; if they were opinion that it were possible that it might have blown open, or the fastenings been removed by another cause before the prisoner arrived there, a verdict of larceny would satisfy the justice of the case.  The Jury returned a verdict of larceny. - To be transported for seven years.

 

Notes

[1 ] See also Australian, 9 May 1834; Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2415, vol. 12, p. 24.  The Sydney Herald wrongly stated that Forbes C.J. was the trial judge.

 

Published by the Division of Law, Macquarie University