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

R. v. Casey [1839] NSWSupC 55

burglary - Yass

Supreme Court of New South Wales

Willis J., 1 August 1839

Source: Australian, 3 August 1839[1] 

THURSDAY. -- His Honor the Chief Justice and Mr Justice Willis took their seats on the opening of the Court, and after several prisoners had been arraigned, the Chief Justice retained his seat with a military on one side, and Mr Justice Willis sat on the other side with a civil jury.

William Casey and John McLachlane, were indicted for a burglary in the dwelling-house of Samuel Agnew Richie, at Bellvalle, Yass, on the 7th April last; and William Casey was further charged with pulling the trigger of a gun, with intent to kill and murder the said Samuel Agnew Richie.

Mr Samuel Richie, superintendent to Mr Barber, deposed that on the night of the 6th of April, about twelve or one o'clock, he was disturbed from his sleep by the barking of the dogs, in consequence of which he called to his own men to know what was the matter.  He was answered by some person who went in to him, with ``you rascal if you don't hold your tongue, you shall die," and he then felt the muzzle of a gun touch his breast, and he believed that the gun was snapped at him.  It was very dark and he could not distinguish any person.  His only reason for believing that the gun was snapped was because after he had disarmed the prisoner, he found the cock down, and he raised it; when the gun was snapped as he believed, he caught hold of, and held it fast, struggling with the person who held it, until they had passed out of the bed-room, through a second and into a third-room, when witness fell with the man on the top of him; witness called out murder, and the man escaped, leaving the gun in witnesses grasp; witness then called his servant, and returning to the bed-room, found the prisoner McLachlan, who witness understood to have been in the bush for seven months previous to the robbery; witness saw a second person there but could not identify the prisoner Casey.  The doors of the house were not fastened in any way; the door had a latch, but witness could not swear that the latch was closed.

His Honor observed that there was not sufficient evidence as yet to support the charge of burglary, and there did not appear to have been the necessary caution used to prevent entry into the house.  The Crown Prosecutor could of course prefer an indictment of another nature against the prisoners, but it did not appear that any burglary had been proved, and if parties would not take the common precaution to protect themselves, but really put temptation in the way of evil disposed persons, they could not reasonably resort to the law for protection against their own neglect.  The present charge, was one which would subject the prisoners to the sentence of death, and he could not satisfy his conscience in letting the case go on, unless there was clearer proof of the burglary.

Mr Richie in answer to what fell from His Honor explained that none of his masters property had been in jeopardy, that having been secured under lock and key; none but his own property was in danger by the insecurity of the place.

His Honor directed the jury that the evidence was not sufficient to support the indictment, as the gist of the offence was breaking and entering, and it appeared clearly that no force had been used in entering the house.

The jury under the direction of His Honor, acquitted the prisoners, who were remanded in order to be indicted on another charge.

 

Doe dem Jones v. Macdougall. -- This was an action to recover possession of one hundred and twelve acres of Land on Hunter's River.  The plaintiff holds the Bolwarra estate, and the defendant an adjoining one, and the real question was, the boundary line between these estate[s].  The grants to the parties are both dated on the same day.  Mr Jones claimed, that a line from a particular bend in the river should be considered as his boundary, which would give him the exact quantity of land contained in his grant: but if a line of trees marked by the surveyor was considered the boundary, then Mr Jones would be minus one hundred and twelve acres.  It was proved that when the land was originally surveyed, the trees were marked about eight chains from the place where Mr Jones has put up his fence, and it was contended that Mr Jones should have gone to the northward to take the required quantity, but now he is bound in one the north as well as the south.  Mr Armstrong, a private surveyor, proved that according to the description set forth in the grant, the boundary is to the southward of the marked trees.  It was proved that the parties from whom Mr Jones purchased, were in possession a considerable time before Macdougall.  The Judge left it for the Jury to say whether the marked trees were the boundary or not.  Verdict for the plaintiff.

Counsel for the plaintiff, Messrs Windeyer and Broadhurst; for the defendant, the Attorney-General and Mr. ├áBecket.  (The case lasted the whole of Tuesday and Wednesday.)

 

Willis J., 2 August 1839

Source: Sydney Gazette, 6 August 1839[2] 

William Casey and John McLaughlin, runaway convicts, were indicted for stealing sundry articles from the dwelling-house of Samuel Agnew Ritchie, and using threatening and menacing language. -- Guilty. -- To be transported for fifteen years.

 

Notes

[1]  See also Sydney Herald, 2 August 1839; Sydney Gazette, 6 August 1839.

[2]  See also Sydney Herald, 5 August 1839.

Published by the Division of Law, Macquarie University