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

R. v. Fitzpatrick [1839] NSWSupC 29

highway robbery - larceny

Supreme Court of New South Wales

Dowling C.J., 10 May 1839

Source: Sydney Herald, 15 May 1839[1] 

Richard Fitzpatrick was indicted for assaulting Peter Fitzpatrick, on the Liverpool Road, and stealing one keg of wine, and immediately afterwards violently beating the said Peter Fitzpatrick; and James Dunn, Timothy Macanalty, James Orr, and William Rogers, were indicted for being present, aiding, and assisting in the commission of the said felony.

On the day laid in the indictment, the prosecutor was proceeding towards Campbell Town, and near Mr. Cordeaux's estate, his dray got into a hole on the road and the prisoners, who with several other men were proceeding in the same direction with two drays belonging to Messrs. Hughes and Hosking's assisted him, and he proceeded on while the other drays camped for the night.  After he had proceeded a few yards, he missed a keg of wine off his dray, and returning back he found the prisoners pouring wine out of the keg.  The prosecutor said, that if they would give him the keg he would forgive them about the wine, but they beat him very severely and tied him and a man named Molloy, who was going with him up the country, together; but Molloy got away, and returned with a constable who resided in the neighbourhood; the prisoners attacked the constable and one of them inflicted a severe wound on his head with an axe, and then fastened his hands behind him and detained him until he was rescued by some of Mr. Cordeaux's people, who were attracted by the noise.

His Honor said, that in point of law the capital charge against the prisoners had failed, for if the wine rolled off the dray and the prisoners afterwards picked it up on the road; or if one of them stole it from the dray without using any menaces or threats, to induce the prosecutor to give it up, it did not amount to robbery; but if the Jury considered that the prisoners stole the wine by either of the methods he had pointed on, they could return a verdict of guilty of larceny.  With the outrageous conduct of the prisoners after the larceny, they had nothing then to do, but it would form the subject of other indictments.

The Jury returned a verdict of Guilty of Larceny.  Remanded on other charges.

(All the prisoners arraigned having chosen Military Jurors, only Court was open.)[2] 



[1]  See also Australian, 16 May 1839.

[2]  On 18 May 1839, all of them were sentenced to be worked in irons for two years: Sydney Gazette, 21 May 1839; Sydney Herald, 20 May 1839.

Published by the Division of Law, Macquarie University