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

R. v. Shorton [1834] NSWSupC 58

breaking and entering - women, judicial attitude to

Supreme Court of New South Wales

Burton J., 12 May 1834

Source: Sydney Herald, 22 May 1834[ 1]

William Shorton stood indicted for breaking and entering the dwelling house of Esther Johnson, at Lockwood, on the 20th August last, and stealing therein sundry articles of wearing apparel, plate, &c., the property of the said Esther Johnson.

The prosecutrix deposed that on the night of the day laid in the indictment, she retired to bed at ten o'clock, and some time after was disturbed by the alarm of a little boy who slept in an adjoining room, who said that some persons were about the house; not having heard any noise, she desired the boy to go to sleep, but at that moment she heard a knocking several times at the window; on her asking who were there and what they wanted, a voice outside answered, ``Get up and open the door, we have brought a letter for you;" the prosecutrix answered that that was no time of night to bring letter, and requested the person to put it under the door or to call and give it to the servant in the morning.  The speaker paused for a moment, when two or more voices were heard, saying we are all armed, if you don't let us in we'll fire in upon you.  The prosecutrix seeing no alternative, and fearing that if they obtained an entrance by force, they would destroy herself and servants, told them that they would be let in, in hopes that they would not resort to violence.  On opening the door, a man named Lynch was the first man who entered, and presenting a musket at the prosecutrix, desired her to stand back.  The prisoner at the bar was the second man, and the third, a native youth, who said ``don't be alarmed, all we want is something for our use in the bush."  The moon had just gone down; but it was a fine star-light night, and presecutrix could distinguish the contenances and figures of the men very well.  The prisoner, on seeing the female servant, who being of a nervous and timid habit, stood trembling by the side of her mistress, said who is that you have got there, the prosecutrix answered that it was her servant, when the prisoner took her by the arm, saying come along madam, we'll take care of you, and dragged her to the kitchen, where together with the servant man, he kept secure.  The prisoner came back from the kitchen, and making use of some threatening language, demanded a candle, which prosecutrix took from a table, and was about to go to the kitchen for the purpose of obtaining a light, when the prisoner pulled her back violently and pushed her into the bed-room, desiring Lynch, whom he stationed as a gard, to take care of her.  The prisoner obtained a light and commenced searching and ransacking the furniture in quest of plunder; the door of the bed-room would not shut close, in consequence of some derangement of the lock, and the prosecutrix had an opportunity of observing their actions.  The prisoner called aloud to the prosecutrix, and enquired if she had any money in the house; but was answered in the negative, prosecutrix quaintly observing, what am I to do with money in the bush; he then enquired for spirits, and was also answered in the negative; he took some silver spoons off a sideboard and put them into his pocket, at the same time calling to the prosecutrix and asking questions as to the quality of other articles on the sideboard which he imagined to be silver; the prisoner possessing himself of whatever he thought valuable; the other two men guarded the kitchen and bedroom respectively; prisoner proceeded to a small store which he opened, and observing a case, demanded to be informed what it contained; being informed that it contained wine, he immediately forced it open and took out several bottles of wine which he packed up.  The prisoner then cut open a bag of sugar and ordered the prosecutrix out of the bedroom to hold a pillow slip which he filled with moist sugar, taking also a loaf of lump sugar which he saw hanging up in the store.  While holding the slip, the prisoner said, how would you like to be seventeen months in the bush, when the prosecutrix observed that if he did not like it he would not do it.  The prosecutrix was then put back into the bedroom, when she heard the breaking open of her chests of drawers and trunks containing her clothes.  Having possessed themselves of whatever they thought valuable, they departed, but the prisoner came back and threatened the prosecutrix at her perril not to leave the room, if she did, he would blow her brains out; when the prisoner and the two men went away, it was about two o'clock in the morning; on venturing from the bedroom, the prosecutrix found her chest of drawers, trunks, and other valuable furniture literally broken to pieces with a tomahawk, and two silk gowns, shawls, a variety of chintz gowns, pelisses, cloaks, bed and table linen, and other articles taken away; part of the property was afterwards found in the possession of a female named Mary Taylor, which led to the apprehension of Lynch and Smith, who, with the prisoner, were in the service of Mr. Campbell, of Erskine Park; the prisoner had been sent to Wollombi, and was not apprehended till some time afterwards; the servants were summoned to Penrith on his apprehension, but were unable to identify him.  It appeared also, on reference to the original depositions, that the prosecutrix had evinced much uncertainty as to the identity, of the prisoner.

His Honor, in putting the case to the Jury submitted it to them as one of great doubt under all the circumstances, having to rely solely on the evidence of the prosecutrix, they would weigh fully how much her testimony was to be relied upon, upon taking into consideration the naturally agitated state of the prosecutrix during the transaction.  The Jury returned a verdict of not guilty.

 

Notes

[1 ] For the notes of the trial judge, see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2415, vol. 12, p. 111 (calling the defendant ``Shortell").  The Sydney Herald had the date and judge wrong, stating that it was heard before Dowling J. on 13 May 1834.

Published by the Division of Law, Macquarie University