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

R v Fellows and Clayton [1835] NSWSupC 41

robbery - felony attaint - Parramatta

Supreme Court of New South Wales

Dowling J., 11 May 1835

Source: Sydney Herald, 18 May 1835[ 1]

Peter Fellows and Alexander Clayton stood indicted for assaulting and putting in bodily fear Samuel Kable, assigned servant to Mrs. Templeton of Concord, on the 14th February last, and taking from his person, one half-crown piece, a knife and some tobacco, the property of his Mistress, a second count laid the property in the King, the prosecutor being a prisoner of the Crown, and by law not eligible to the possession of any property in his own right.  The prosecutor deposed, that on the night of the day laid in the indictment, he was proceeding from his Mistress, house at Concord to Parramatta, in charge of a dray and bullocks containing lime, a quantity of cedar, and the rations for two men, who were erecting a house for the Mistress at Parramatta; the reason of his travelling at that late hour was in order to get a quarter of fresh beef as early as possible, on the following morning, as the meat was to be salted; if delayed until the heat of the day it was feared the meat would not take the salt.  He had proceeded without molestation until about three miles from Parramatta; when the two prisoners came out of the bush, one of whom, the prisoner Fellows, told him to stop the dray, or he would shoot him; he had a large black stick in his hand, about four feet long, which he presented at him, lodging one end against his shoulder, in imitation of a musket; prosecutor being aware of the deception, said jokingly, ``You would not shoot me with a broom stick surely", and whipped the bullocks forward; the man with the stick ran up to the bullock, and struck him on the head, which stopped him, when the other prisoner, Clayton, took him by the leg, and pulled him down from the cart; he was scarcely on the ground when the prisoner Fellows returned, and thrust his hand into his pocket, taking therefrom one half-crown, 4d in coppers,  a knife and some tobacco; there was a piece of whip-cord with the knife and tobacco, which was returned to him, when the other desired him to take it of his pocket again, threatening if he did not he would knock his brains out; he was then suffered to get on the cart, which he was about driving off, when they followed, and asked him what he had in the boxes; prosecutor told them there was nothing in them, and knocked them with his whip to convince them by the sound, that they were empty; they then desired him to be quick as he could, while he was safe, which command he readily complied with; prosecutor swore most positively to their identity; the prisoner Clayton has a hut on the road side, at a short distance from the place where the robbery took place, and Fellows who is charcoal burner lives in the bush at the distance of a quarter of a mile from the residence of Clayton; he had seen them both frequently, and had been in the house of Clayton several times when travelling on the road.

The prisoner Clayton, who is quite blind, questioned the prosecutor as to his identity, which he affirmed in the most positive manner; he knew him so well that he could not be deceived, but was not aware that he was blind; had been in his house several times, but had never noticed it.  The prisoner appealed to the Court whether any reliance could be placed on the statement of a man who could swear so positively to the identity of a man whom he affected to know so well, yet did not know that he was blind, a fact which could not be concealed.  Mr. Simon Lear, Oculist, being on the Jury, examined the prisoner's eyes, and being sworn, confirmed the prisoner's statement as to his being totally blind.  The other prisoner, Fellows, exposed his wasted arm, shewing that he was a cripple, and had lost the use of it.  The prisoner Clayton stated that the case against them was an evidence fabrication; it had been elicited from the prosecutor that he had been at certain houses on the road, which are notorious sly grog shops, and where he had spent the money of his mistress, adopting the present means to account for it.  The prosecutor had called at his house a few weeks previously, and wanted him to purchase some flour; on that occasion he told him he had been stealing the flour from his mistress, and desired him to be off out of his house, and never come there again on such an errand, and he left the house threatening to serve him out for it, and has kept his word.  The prisoner submitted to the Court that it was a most unlikely thing that two men, one a cripple, and the other totally blind, who could scarcely move about his house without assistance, could commit a highway robbery on the road in the manner described.

His Honor briefly summed up, and left the case with the Jury, who instantly returned a verdict of Not Guilty.

 

Notes

[1 ] See also Australian, 19 May 1835.

Published by the Division of Law, Macquarie University