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

R v Mandle, Tilley and Clawson [1836] NSWSupC 67

robbery - Forbes C.J., servants of - jury verdict, judge criticises

Supreme Court of New South Wales

Burton J., 3 November 1836

Source: Sydney Herald, 7 November 1836[ 1]

Thursday, November 3. - Before Mr. Justice Burton and a Civil Jury.

Joseph Mandle, John Tilley, and Thomas Clawson, assigned to Chief Justice Forbes, were indicted for committing a robbery on Michael McManus, a fellow servant, at Muscle Brook, on the 1st July.

McManus swore that on the day laid in the indictment, he was drinking in the house of a publican named Nowlan, in company with a man named Mumford, when the prisoners arrived at the house, and Mumford asked them to have some run, and called for another pint to treat them with.  When they had drunk the rum, a quarrel arose between himself and Mumford, which ended in a scuffle, and McManus was knocked down.  While he was lying down, the prisoners Mandie and Tilley, stripped him of his jacket and trousers.  Clawson was standing by, but took no part in the affair.   One of Mr. Forbes' Overseers stated that the prisoners were absent from their station on the evening the robbery was committed.

In putting the case to the Jury His Honor said, that it was a case that ought to have been dealt with in a summary way by the district authorities, but as it was before them they must decide it.  He would tell them that if they were of opinion that the knocking down was not a part and parcel of the offence, and that the theft was not contemplated until the prisoner was lying on the ground, it was only a larceny, and he would advise them to acquit the prisoners of the robbery.  If they believed the witness McManus, they must find the prisoners Mandle and Tilley guilty of larceny; against Clauson there was no evidence.  The Jury retired about five minutes, and on their return into Court enquired if the property had been found on the prisoners.  His Honor said that they had only the evidence of McManus to depend on.  The Jury then returned a verdict of - Not guilty.

Mr. Justice Burton said that he thought the Jury had erred on the side of mercy, for he could not conceive how a verdict was warranted by the facts of the case.  The Jury had doubtless returned a conscientious verdict, but certainly an erring one.

 

Notes

[1 ] See also Sydney Gazette, 5 November 1836.

Published by the Division of Law, Macquarie University