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

R. v. Smith (No. 2) [1839] NSWSupC 57

larceny - Penrith - convict attaint - married women's legal disabilities - women defendants in crime

Supreme Court of New South Wales

Stephen J., 3 August 1839

Source: Australian, 6 August 1839[1] 

SATURDAY. -- Before His Honor Mr Justice Stephen and a Civil Jury.

Hannah Smith was indicted for stealing from the person, one warrant for the payment of £30, and one bank note for £20, the property of Jane Jackson at Penrith.

The prisoner was a married woman, a native of the Colony, but separated from her husband, and living with another man near Penrith.  The prosecutrix was the wife of a ticket-of-leave man, named Daniel Jackson, and she was also separated from her husband, and lived for some time with a man named Clarke, who died on the day before the alleged robbery was committed.  Clarke left a will bequeathing all his property to the prosecutrix, who, immediately on his death, possessed herself of sixty pound in money which was in his box, which she rolled up and placed in her bosom.  The prisoner was present when prosecutrix took the money from the box, and remained with her for a quarter of an hour, but during that time she could not have possessed herself of the money.  Prosecutrix shortly after missed the money but could not account how it had parted from her, and the warrant for £30, and bank-note for £20, laid in the indictment, was part of the money so lost.  The prosecutrix admitted, that both before, at the time, and some time after she missed the money, she was overcome with grief and brandy, but she could not say which of these acted most strongly.  The money was proved to have been in the prisoner's possession by a Mrs Peacock, the wife of an innkeeper near Penrith, to whom the prisoner went on the day of the robbery, and showed money, consisting of cheques and notes, to the amount which was lost, and endeavoured to get one cashed.

Mr Windeyer, who was retained for the prisoner contended, that the prosecutrix being a married woman, the property ought to have been laid in her husband, or, he being a ticket-of-leave man, in the Crown.

Mr Therry, for the Crown contended, that a ticket-of-leave man could not hold property, and that it was properly laid as belonging to the prosecutrix, who had obtained it as legatee to Clarke, and that it was vested in her as a femme sole.

His Honor Mr Stephen said, that he should not suppose Lord Wynford's Act, which prohibited ticket-of-leave men holding property had a retrospective effect, and that, in such case, property acquired by a ticket-of-leave holder, previous to that Act coming into operation, must be consider as his.

Mr Therry stated, that it had already been held by the Court that a ticket-of-leave man could not hold property although it had been acquired prior to the passing of the Act.  The decision was made in the case of Cobcroft, in which one brother got possession of a large property belonging to another brother who was a ticket-of-leave man.  The brother brought an action at law to recover back his property, but the judges held, that the action was not maintainable as he could not hold property although it had been acquired prior to the passing of the Act.

Mr Windeyer objected that there was no legal evidence that Daniel Jackson was a ticket-of-leave man.  The mode of proving him to be a prisoner of the Crown was pointed out by the Act and required the production of the indent or an attested extract from it; and for all that had appeared, Jackson might be a free man, and the property ought to have been laid in him.

Mr Therry said, that in particular cases such proof had been considered necessary, but not in criminal cases.  The Court had always receives secondary evidence in criminal cases, and very properly so, otherwise justice might be defeated continually.

His Honor said, that it was high time some definitive rule was laid down in such cases, especially as they continually came before the Court, and took up much time from their incertitude.

Mr Windeyer requested His Honor to take a note of his objection, and said, that although it might then be considered too late to do so, he must state another objection which had arisen to him, which was, that the prisoner had already been tried upon various portions of one and the same robbery, if robbery it was, and might continue to be tried upon every separate article.  She had already been twice acquitted, and he contended that she was entitled to plead the former acquittal in bar of the present trial.

His Honor said, that as Mr Windeyer desired it, he would make a note of the objection, although he (His Honor) was strongly against its validity.  He, however, thought himself bound to mention one objection which appeared to have been overlooked by the learned counsel, which was, that Jane Jackson had taken possession of the property, which was said to have been stolen, almost before the breath was out of Clarke's [b]ody, and before the will had been proved.  The question then arose, whether the property ought not to have been laid in the executors (two having been appointed by the will) although she was the sole legatee.

Mr Windeyer said, he would take advantage of His Honor's suggestion and raise this objection also, in case the jury found the prisoner guilty.

His Honor, in summing up, advised the jury, that there was no evidence of the property having been stolen from the person; on the contrary, the prosecutrix had stated, that during the time the prisoner was in her company it was impossible that she could have possessed herself of the money.  The probability, therefore, was that the prosecutrix had dropt the money which had afterwards, in some way, come into the possession of the prisoner, and the main point for the consideration of the jury was, whether she had been in possession of, and had used it knowing it to have belonged to the prosecutrix.  On the charge of stealing from the person they must acquit the prisoner, and on the second they had simply the evidence of the prosecutrix, (who had admitted that she had been drinking very hard that day) that the prisoner saw her place the money in her bosom.  If they were satisfied that the prisoner did know that the money belonged to the prosecutrix, and that she had converted it to her own use they could find her guilty of the minor offence.

The jury retired for a short time and found the prisoner guilty of larceny.

The prisoner received a good character from Mr Frazer, clerk to the Bench at Penrith, and was remanded for sentence in order to give time for the consideration of the objections raised against the indictment.



[1]  See also Sydney Herald, 5 August 1839; Sydney Gazette, 6 August 1839.  On the previous day, 2 August 1839, Smith had been acquitted on the informality of another information, when it was discovered that the prosecutrix was married, although living apart from her husband.  See also R. v. Thomas Smith, Australian, 6 August 1839 on similar complications caused by a woman being married to a convict.  On that issue, see B. Kercher, ``Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850" (to be published in a future issue of the Law and History Review).

Published by the Division of Law, Macquarie University