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

R. v. White [1834] NSWSupC 53

stealing - evidence, prior convictions

Supreme Court of New South Wales

Dowling J., 7 May 1834

Source: Australian, 9 May 1834[ 1]

Thomas White, a genteel looking young man, was indicted for stealing six silver spoons, value £1 the property of Edward Borton, at Sydney, on the 6th of March.

Edward Borton, keeper of the London Tavern, deposed, that more than a month ago on a Thursday he lost six silver spoons, from an up stairs room, where they had been placed on the side board; there were more of the same description - saw them that morning himself, and missed them about three o'Clock in the afternoon; several persons had been there dining - prisoner was in the room that day, to breakfast, and in and out of the room several times; a Mr. Armdell was with him; saw the spoons about a week afterwards at the Police Office, they were engraved E  J. B.

Cross-examined - Saw the spoons at 10 o'Clock in the morning, and missed them at 3 o'Clock in the afternoon prisoner came to the house after the spoons were missing; prisoner breakfasted alone the morning the spoons were missing; cannot say whether Mr. Armdell was in the room at the time; there was other property of value; other persons frequented the room.

Alexander Dick, silversmith, of George Street, knew the prisoner by sight; on the 12th of March, about seven o'Clock in the evening, he came to witnesses shop, he said he would take the price which my wife had offered him for some teaspoons in the morning, he produced five tea spoons, three were engraved J. E. B., asked if they were his own initials, said no, but his wife's before marriage; witness handed them over to his wife, who weighed them, to see if they corresponded with those he brought in the morning; while Mrs. D. was paying him, she told prisoner to make out a receipt of the number of spoons, and the description; after he was gone witness missed a watch; on looking at the receipt found it signed J. H. White, but he had given no description of the spoons; received from Mr. Dick, thirteen shillings sterling, 12th of May were the words of the receipt, suspecting they were stolen, went to the Police and gave information, when he found that they belonged to Mr. Borton; prisoner said he had lost his watch, and that he wanted a fresh one, and had been recommended to him, by Mr. Cox of Clarenden; showed him several, and put them on the counter, he picked one out, and ordered his name to be engraved on it, he then enquired for some tea spoons, and said he would take half a dozen; while replacing the watches in the drawers, found that a patent lever watch was missing.

Cross-examined - Witness stated at the Police, what he said now; did not produce the receipt at the Police; had the receipt with him, but did not mention it; it was written in the presence of witness and his wife; the writing is that of prisoner; it was written on the counter; have two servants, one attends in the shop, but does not sell goods, thinks that he writes, had no suspicion that the spoons had been improperly come by, until I lost the watch; prisoner was in the shop about an hour and a half, Mrs. Dick was in ihe [sic] shop all the time; the receipt has been in the possession of witness ever since; witness first put the receipt into his pocket, and then into a drawer; consulted with a neighbour named Wood, and having obtained a constable, found that prisoner lived at the Australian Hotel; the spoons were the ordinary size, old, but the initials were plain to be seen; witness put a mark upon them; is well acquainted with silver articles; I refuse to answer whether I was tried and convicted for receiving plate belonging to Mr. McLeay.

Judge Dowling - I hold he is not bound to answer such a question.[ 2]

Cross examination continued - I refuse to answer whether I have been a visitor to Norfolk Island or Moreton Bay; I am a Scotchman; I went to Nowfolk Island for receiving stolen plate belonging to Mr. McLeay; I was sentenced 7 years; I came free to the Colony.

George Jilks, chief constable - I produce some tea spoons, they were given to me by Mr. Dick, who said that a person named White had brought them to sell; I knew that spoons immediately I saw them, and showed them to Borton, who claimed them, they are worth about £1.

Edward Borton - I swear positively to three of the spoons, they are the same that were produced at the Police Office, and identified to Dick.

Mrs. Charlotte Dick - Remembered prisoner coming to her house in the month of March, between 10 and 11 in the morning, wished to look at some tea spoons; he selected six and desired them to be put on one side; said that he had given Mr. Clayton an order for six more; he said he had six old ones that he wanted to sell, and he would go and see if Mr. Clayton had finished the spoons; he went away and returned about 10 o'Clock, and brought five tea spoons, I weighed them and found they weighed three ounces and five penny weights, which came to thirteen shillings, he said that was too little, and he would give them away; he then went away, and returned in the evening, it was dark; my husband was at home then; he produced the spoons, and said he would let me have them; while I weighed them, he wrote a receipt and was paid thirteen shillings, he looked at some watches, selected one, and wished his initials engraved upon it; the spoons were marked E. J. B. these are them; he was in the shop about three quarters of an hour; when he went away, we found that he had stolen a watch, that caused suspicion about the spoons; my husband marked the spoons with a file.

Cross-examined - Cannot say what day it was, that prisoner wrote the receipt; I have had no conversation with my husband; directly he left the shop we missed the watch, I fastened the door when he left the shop; Mrs. Reynolds's daughter was in the shop when he came in the morning; persons have attempted twice to pass off stolen goods upon us; the receipt was left by him on the counter, and my husband looked at it on loosing the watch; my husband went to look after prisoner, and gave the spoons to Mr. Jilks.

This closed the prosecution - the prisoner declared his innocence.

Mr. Thomas Armdell, a farmer at the Hawkesbury, met prisoner in Sydney at about the 5th or 6th of March in some part of George street, near the Royal Hotel, about ten o'clock; the returned with me to the London Tavern where we had some refreshment; we stopped about ten minutes; we were in the up stairs room; I breakfasted there that morning; in the course of the day saw several persons come inso [sic] the room, thinks that prisoner did not breakfast there that morning, we dined there together, nobody was there at the time, we were there about three quarter of an hour and I went and took two places in the Windsor Coach, we went to Windsor that day; it was about the 6th March, he could not have been in town on the evening, as we stopped at Windsor one night; he stopped at my house till the Tuesday following: he married my sister.

Mr. John Spark, keeper of the Australian Hotel; knew prisoner since October last, he occasionally lived at his house, but seldom two days together; he had plenty of opportunities to carry off plate, if he felt inclined; he never did do so; I can't speak to the hand-writing of the receipt, it is not like his handwriting; he stopped at my house the early part of March; can't say whether he went to Windsor.

Mr. John Clyne, an Accountant, has known prisoner for the last four years at Hobart Town and here, considers him a respectable honest man; he was acting as a merchant at Hobart Town.

Mr. R. J. Kinsman, a barrister, knew prisoner for two years at Hobart Town, was introduced to him there, by Mr. Kerr M. C., as having lately resigned his situation as Principal Superintendent of the Circular Head Company; his wife is a highly respectable lady of independent fortune; prisoner came up here about a grant of land and to purchase horses.

Peter McIntyre Esq., J. P., has known prisoner for five years, during which time he has borne the character of an honest man.

Mr. Kinsman recalled; I have seen prisoner write and received letter from him; I do not believe the receipt to be in the hand-writing of the prisoner of the bar, the character is different; the signature is not the way he signs it.

This closed the defence,

His Honor then minutely recapitulated the evidence, leaving the whole case for the consideration of the Jury upon the credit they gave to the witnesses.  The Jury found the prisoner Guilty, but recommended him to mercy on the ground of his good character.

The prisoner was again indicted for stealing a watch, value £10, the property of Alexander Dick, at Sydney on the 12th March.  The evidence in this case was of a similar description to the last.  Guilty, -- He was then called up for judgment, and the learned Judge in passing sentence upon him, observed, that if he was innocent he was the most unfortunate man that ever lived.  To be transported for life.

 

Notes

[ 1] See also Sydney Gazette, 10 May 1834.  The Gazette described the prisoner as having ``highly respectable connections in the Colony."  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3279, vol. 96, p. 205.

The trial date was postponed for a few days while waiting for a witness: see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2414, vol. 11, pp 98-99.

[2 ] The Australian, 9 May 1834, attacked the reception of evidence as to the prisoner's past record:

``During the last week in the Supreme Court, Judge Burton ruled, that a witness was bound to answer questions respecting offences of which he had been previously convicted.  In the case of White tried on Wednesday, Mr. Justice Dowling ruled, that such questions could not be asked, but upon the decision of Mr. Justice Burton being cited, he admitted the question to be put, in the hope, as his honor stated, that the point might be raised before the Court and finally decided.

``There is no fastidiousness in the disgust, which we feel at the admission of questions of this description.  There is not one case in a thousand, where it can be material to the point at issue, that the witness should be compelled to recur to the crimes of earlier years, long expiated and forgotten, we have indeed seldom known an attempt made, to wound in this manner, the feelings of a witness, except for the gratification of a vindictive disposition.  Truth can never be elicited by such means, and we sincerely trust that the decision of the Supreme Court will set at rest the point, and prevent the cross-examination of a witness from being made the occasion of injuring his feelings, and needlessly raking up the bitterly repented events, of former days."

On new legislation restricting evidence of prior convictions to cases where the prisoner puts character in evidence: Sydney Gazette, 28 February 1837.

Published by the Division of Law, Macquarie University