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

R. v. Ambling [1838] NSWSupC 75

stealing, cattle - Burton J., influence on verdict - jury, judge's influence on - Burton J., attitude to cattle stealing

Supreme Court of New South Wales

Burton J., 3 August 1838

Source: Australian, 7 August 1838[ 1]

FRIDAY - Before Mr Justice Burton and a Military Jury.

William Ambling was indicted for stealing a heifer, value £10, and a calf, value £5, the property of John Poast, at Red Bank, near Maitland, on the 1st of November last.

The prisoner is a free man, was employed as an overseer to Mr Hyland, and stationed at a farm adjoining the prosecutor's near Liverpool, on the Cowpasture Road.  The prosecutor's daughter was married to a man named Howard, who was employed as a carrier, and had the charge of his father-in-law's cattle.  Some short time before the day laid in the indictment, one of the prosecutor's cows was drowned in a water hole, and her calf was left in a fenced paddock, belonging to the prosecutor.  About this time, Howard left home and went to Argyle, leaving the calf in the paddock, and on his return, it was missing, and all enquiry after it was fruitless.  About this time, Mr Hyland's cattle were removed from that station and driven to Maitland, and a calf similar to the one lost by the prosecutor was driven with them.  The calf was described as being particularly marked in the colour, having a white back, white belly, white hind legs, the fore legs being white on the one side and black on the other, but having no brand.  A hutkeeper who had lived with the prisoner at the Cowpastures deposed to his having brought the calf in question home on the day laid in the indictment, and desired him to feed it and bring it up by hand, which the hutkeeper did accordingly.  The circumstances favourable to the prisoner's case were, that a great intimacy existed between the prosecutor's daughter, married to Howard, and the prisoner; that she had given him a calf (not the one charged in the indictment) and subsequently absconded from her husband's protection, and lived with prisoner openly at Maitland, where he picked the heifer out of Mr Hyland's herd, and the prisoner was apprehended and committed for the robbery.  A witness named Spilsbury deposed to the prosecutor having said that he would do all he could to convict the prisoner, for having taken Howard's wife from her home.

His Honor, in putting the case to the Jury, observed that the law in such cases was imperative in cases of conviction, and that there was but one sentence for all grades of cattle stealing, which he had taken upon himself to point out, and to recommend an alteration in the law.  He had observed that there were gradations in cattle stealing which warranted his recommendation, for there was a great difference in the magnitude of the offences -- between a man driving away a whole herd of cattle, and a man stealing a sickly calf, which was sworn to be worth nothing at the time.  Nevertheless, the punishment was the same.  There was no doubt but that the prisoner had been wickedly culpable in the part he acted towards the prisoner's son-in-law, which certainly cast a shade of suspicion on the motives which actuated the prosecutor; but nevertheless, if they were satisfied that he had stolen the calf, the jury must find him guilty; and he (His Honor) should recommend the imperative sentence which the law provided to be commuted.  The Jury retired for about five minutes, and returned a verdict of Not Guilty.  The prisoner was remanded, the Crown Prosecutor stating that he had made a confession of cattle stealing in another case.

 

Notes

[ 1]See also Sydney Herald, 6 August 1838; Sydney Gazette, 7 August 1838.  This case was also recorded in Burton, Notes of Criminal Cases, vol. 37, State Records of New South Wales, 2/2437, p. 37.

Published by the Division of Law, Macquarie University