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

R. v. Smith [1837] NSWSupC 26

Newcastle- burglary - jury, hung jury

Supreme Court of New South Wales

Burton J., 15 May 1837

Source: Sydney Herald, 22 May, 1837[ 1]

Monday, May 15, 1837. - Before Mr. Justice Burton and a Civil Jury.

Robert Smith, assigned to Captain Crummer, was indicted for burgalariously entering the dwelling house of James Henry Crummer, Esq. at Newcastle, on the 27th March; a second count charged the prisoner with stealing three bottles of wine.  A soldier of the 28th regiment deposed that on the 26th March he stowed one hundred and twenty-three bottles of wine in a cellar joining the house; that on the following morning he found the hasp of the door had been broken, and three bottles of the wine stolen; the prisoner slept in the same kitchen with him, and in the course of the night he missed him from the bed where he ought to have been.  A female servant swore that early in the morning she saw the prisoner getting over the yard-wall as if he had been out all night.  Another soldier swore that in the evening after the wine have been packed, he saw the prisoner break open the door and bring out either three or four bottles of wine, one bottle of which he poured into a canteen and it was drunk in the kitchen; this witness was severely cross examined by the Judge, but persevered in his story.  A second female servant swore that on the morning after the robbery, before it was found out, she saw the prisoner attempting to patch up the hasp of the door.  The prisoner's defence was that the wine was some that had been left in a cask, and the first soldier being recalled said there was about a pint and a half of think wine left in a canteen.  The learned Judge directed the Jury to acquit the prisoner of burglary, as it appeared the cellar was not attached to the dwelling-house, and left them to consider the case of larceny.  The Jury, without retiring from the box, returned a verdict of Not Guilty.  The Judge requested the Jury to reconsider their verdict, upon which they left the Court, and after being out for about two hours returned into Court and said they could not agree to a verdict.  The Court was then adjourned until eight o'clock in the evening, when as they were still undecided, the Court adjourned until the next morning.

On His Honor taking his seat on Tuesday morning, the Jury were still unable to agree, upon which they were again locked up until two o'clock.  Shortly after two o'clock the three Judges took their seats on the Bench and, in reply to the Chief Justice, the foreman of the Jury said that eleven of the Jury were agreed to a verdict of acquittal, but that one would not agree.  The Court asked the Attorney-General whether he would consent to the prisoner's discharge under the circumstances?  The learned gentleman said that he was so impressed with the constitutional principle that a Jury having been sworn should not be discharged until they had returned a verdict, that in a case of any enormity where the life of a prisoner was at stake he would not consent to their discharge under any circumstances, but in the present paltry case he should interpose no objection, but would leave it to the Court.  The prisoner declined giving his consent.  The Jury were again locked up and at half-past four returned a verdict of Not Guilty, and the prisoner was discharged.



[ 1] See also Sydney Gazette, 16 May 1837. This case was also recorded in Burton, Notes of Criminal Cases, vol. 31, State Records of New South Wales, 2/2431, p. 14, Burton noting that the defendant was ``bond", i.e. a convict, at the time of the trial.

Published by the Division of Law, Macquarie University