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

R. v. Cummings [1840] NSWSupC 9

stealing, horses, jury, challenging the verdict, common law, "perfection of reason", felony attaint, Bathurst

Supreme Court of New South Wales

Dowling C.J., 3 February 1840

Source: Australian, 8 February 1840[1]

            William Cummings was indicted for stealing a mare, the property of Charles Frederick Warne, at Bathurst, on the 29th December, 1838.

The case for the prosecution was, that about eighteen months since, two mares strayed from Mr. Warne's run near Bathurst. In the month of January, 1839, the prisoner, who is a man of considerable property, inserted an advertisement to the effect that some time before he had lost a mare, and that a mare which he believed to be the same had returned to his farm, but if any one had lost a mare of the same description, they had better apply to him, and if they could prove it to be theirs, he would give it up; then followed a description of the mare, which was not correct; but a few days afterwards he sent a correct description, which was inserted. Mr. Warne thinking the mare answered the description of his own, sent his servant, who positively identified it. Other witnesses also identified the mare, but none so positively as Mr. Warne's servant. Cummings refused to give the mare up declaring it to be one that he had purchased from a person named L'Estrange.

            Mr. àBeckett, who addressed the jury for the prisoner, said that he had thirteen witnesses in attendance to prove that the mare was actually the one that Cummings purchased from L'Estrange, but be the mare whose it might, he contended that there was not the slightest evidence of any felonious taking, but on the contrary Cummings' conduct was most praiseworthy.

            Although no witnesses were called for the prisoner, the Attorney General exercised his right of reply.

The Judge summed up very strongly in the prisoner's favour, and the Jury, after an hour's absence, returned a verdict of Guilty - Remanded.

Dowling C.J., 6 February 1840

Source: Sydney Herald, 7 February 1840[2]

Thursday - Before the Chief Justice.

William Cummings, convicted of horse stealing, on a former day, having been placed at the Bar, the Attorney General prayed the judgment of the Court.

            Mr. a'Beckett said he had an application to make to the Court, not in the nature of an arrest of judgment, but rather that His Honor would delay passing judgment altogether, which he would cite several cases to shew the Court had authority to do if His Honour saw that the verdict of the Jury ought not to have been returned.  In the case of the King v. Gough, 2nd Douglass 797, which was a case of perjury, upon an application for a new trial, made after the time allowed by law, Judge Butler said, that, from the state of the evidence, he must say that the verdict was most extraordinary; and Lord Mansfield, in granting the application, said, that if the Court saw that a verdict was improper they would postpone judgment for ever.  In the Kingv. Holt, 5 Term Reports, Lord Kenyon said the Court is always anxious to see justice done, and will take care not to pass judgment on an innocent man.  In Tilly's case, in the 2d Leach, the Court said, that in criminal cases it is never too late to repair what had been done.  In the case of the King v. Waddington, in the 1st East. Lord Kenyon said, if upon review of the case the Court is satisfied that the prisoner is not guilty of any offence, they will not proceed to pass judgment upon him.  He (Mr. a'B.) was aware that he could not impeach the verdict of the Jury, and therefore he only asked the Court to postpone the judgment in order that the prisoner might have time to lay his case before the Executive.  To shew how important the matter was to the prisoner, he would read part of an affidavit made by him.

            The Attorney General objected to any affidavit made by the prisoner after conviction being read.

            Mr. a'Beckett said that he would suggest that the sum of £1500 is owing to the prisoner, which, if judgment is passed upon him, he will have no means of obtaining.

            The Attorney General, then the Crown will obtain it for him.

            Mr. a'Beckett was then about to speak upon the nature of the case, when

            The Attorney General said he could not allow the verdict of the Jury to be impeached; there was no objection made to the way in which the case was left to the Jury, and the verdict could not be impeached.

            The Chief Justice said he could not allow the verdict of the Constitutional Tribunal to be impeached - the proper mode of proceeding was to apply to the Executive.  He (the Judge) would ask the learned counsel what constitutional authority a Judge has to interfere and postpone judgment after the verdict of a Jury.

            Mr. a'Beckett, what authority is there to compel Your Honor to pass judgment at any particular time.

            The Chief Justice, I must perfect the record.  What I want you to shew is a case of felony in which the Court interfered - the cases you have cited are all cases of misdemeanors, where the Court would if it thought proper grant a new trial.

            Mr. Windeyer said that he thought he could at once shew that the Court has authority to interfere in cases of felony; but before doing so, he would draw His Honor's attention to the great importance it was to the prisoner that he should have an opportunity of proving his innocence before sentence passed, for once the sentence was passed he would be attainted, and no pardon could do away with all the effects of the attainder, the mischief therefore to him would be irreparable.  The case to which he alluded was the King v. Garside, in the second of Adolphus and Ellis.  The prisoner had been convicted of murder, but had given information which led to the discovery, upon faith of a proclamation, offering a pardon to any persons giving information, except the actual perpetrator; but the jury found that the prisoner was the actual perpetrator of the murder, which was endorsed upon the record.  In this case, after conviction, the prisoner was brought up to the Court of King's Bench and pleaded the proclamation, and the Court gave the prisoner's counsel time to prepare himself, Lord Denman observing, that he saw nothing to prevent execution being carried into effect.  If, therefore, in a case in which the Court said there was no hope for the prisoner, the Court postponed judgment, and exercised its discretion, surely His Honor, with the facts that must be within his knowledge, would exercise a discretion, and prevent irreparable injury from being done to the prisoner.  In the arguments in the case he had cited, the case of the King v. Thurtell and others was alluded to, in which one of the prisoners, Hunt, having given some information to the magistrates, prayed that trial might be postponed, in order that he might petition for a pardon; but the Court said "No, the trial must be proceeded with;" but after the trial, sentence was postponed, and Hunt obtained a conditional pardon.  These two cases he (Mr. W.) trusted would satisfy His Honor that he had a discretion in the matter; and he would ask, what there was in the case that could prevent the prisoner from remaining over until the last day of the session, as is usually done with other prisoners who are remanded?  Would the public justice suffer by the postponement?  It was monstrous to suppose that the law, the perfection of reason, can be in such a state, that there is no way of repairing the mischief done by the erroneous verdict of a jury.

            The Attorney General objected to the postponment of the sentence, on the ground that the court had no power in the matter.  The only purpose of the postponment was to defraud the crown of the £1500 said to be due to the prisoner.

            After a few words from Mr. a'Beckett in reply' the Chief Justice said that if there was any paramount reason why he should pass sentence on the prisoner he would at once do so; the verdict of the Jury having been returned he must regard the prisoner as guilty in the eye of the law.  He had not had the advantage of consulting his learned bretheren upon the subject, and he would therefore postpone the sentence untill the last day of the session, but in doing so he did not in the least impeach the verdict of the Jury.

Dowling C.J., Willis and Stephen JJ, 10 February 1840

Source: Sydney Herald, 10 February 1840[3]

            Monday - before the three Judges.

The Attorney-General went through the calender, and two or three prisoners were discharged by proclamation.

            William Cummings convicted of horse stealing, being placed at the bar, the Chief Justice said that he had conferred with his learned brethren and they agreed with him that under the circumstances, the prisoner having, (certainly in the face of a very strong summing up by the judge for an a acquittal) been found guilty, and the court knowing nothing, officially to disparage the verdict, he was bound to pass sentence upon the prisoner and regard the verdict as a righteous one.  If there were really proof of the prisoner's innocence, or anything that could induce the Governor to grant a pardon, the prisoner would not be in any worse condition for being sentenced.  He was bound to say that in not calling witnesses he thought that the counsel exercised a sound discretion, for if they had called witnesses the conviction might have been more satisfactory, than it now is.  The sentence of the Court was that William Cummings be transported for ten years.


[1]              See also Sydney Gazette, 6 February 1840.

[2]              See also Australian, 8 February 1840;

[3]              See also Australian, 13 February 1840; Sydney Gazette, 13 February 1840.

Published by the Division of Law, Macquarie University