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

R. v. Watson [1841] NSWSupC 113

stealing, horse - Scone - appeals, criminal

Supreme Court of New South Wales

Stephen J., September 1841

Source: Sydney Herald, 10 September 1841


            James Samuel Watson, a free emigrant, was given in charge to a Jury for stealing a horse, the property of one Joseph Browne.

            The ATTORNEY-GENERAL stated the case, and said, that he regretted having to prefer a charge against the prisoner which would disclose against him circumstances of great fraud, falsehood, and meanness.

            Thomas S. Hall, examined by the ATTORNEY-GENERAL. - I live in the district of Scone; I bought a horse at a pound sale on the 29th of April last, and another after the sale, which was sold me as the private property of the prisoner, at Satur; the first horse was branded J. T. on the shoulder; the second horse was branded with an M on the shoulder. Immediately after the sale of the first horse to me, the prisoner asked me what would I give for the second horse, which was at a short distance from the pound, in a paddock; I offered him £30 for the horse, he gave me a receipt for the payment; I brought home the second horse, and branded him with an H; I kept him for some time, till he was sent for to Scone, about a month afterwards. That horse was claimed from me by one Joseph Browne; I have that horse still in my possession; the prisoner said that he had purchased the horse from the owner, and that it was his private property.

            Cross-examined by Mr. Purefoy - I did not see Mr. Browne at Scone; I cannot swear that Browne ever saw the horse sold to me by the prisoner; the pound at Satur is a common stockyard; there were three or four persons present at the sale, which was at twelve o'clock in the day; Mr. Dangar was present at the sale; £30 was the full value of the horse; cattle sold by a pound sale are sold within the pound, and I never saw any such cattle sold out of the pound; the horse, however, was sold me within sight of the pound.

            William Shields examined by the Attorney-General - I am chief constable at Scone; the prisoner offered me a bay horse branded M for sale, as being his own property, on the 28th of April; I saw that horse next day, and Mr. Hall then drove it away; I saw it afterwards claimed by Joseph Browne; I know the prisoner's handwriting, and the receipt produced is in his handwriting; the affidavit stating that an impounded horse, branded M, was sold to one Wait on the 29th of April, is drawn by the prisoner, and is in his hand-writing; there were only two horses sold on the 29th of April by the prisoner; the entry in the pound book, stating the sale of a horse branded M on the shoulder, and sold to Wait on the 29th of April, is in the prisoner's hand-writing.

            Cross-examined by Mr. Purefoy - I have been seven months at Scone; I was before chief constable at Wellington Valley; I am seven years free; I was in an iron gang; I never was in a penal settlement; I was not at the sale of the horses; I heard Browne claim the horse branded M; he swore it was his, but I do not think he has got the horse; I do not know any other mark but the brand on the horse; I do not know that the prisoner sold the horse to Hall, but he drove it away; there is a very good pound at Satur, but there is no water in it; I do not know exactly how it is fenced.

            Robert Wait examined by the Attorney-General - I am a free servant to the prisoner; I never bought a horse from my master at any time; I do not know any one else bearing my name; I never spoke to my master about the sale at the pound; on the 29th of April I put one horse in the pound and the other in a paddock by my master's orders; the prisoner himself impounded the horses.

            Cross-examined by Mr. Purefoy - I used to take the cattle out of the pound to feed; I could not swear to either of the horses now; I do not know whether there was any notice of sale before the sale.

            Joseph Brown examined by the Attorney-General - I lost a bay horse branded M on the shoulder, about six months ago; I afterwards saw that horse at Scone Police-office about a fortnight ago; I had been in Sydney; I saw Shields, but he did not show me my horse; another constable showed him to me.

            Cross-examined by Mr. Purefoy - I was about six months ago I lost the horse, but I do not know the month; my servant told me that he lost the horse on the road; he is a free man, but he is not here to-day; I knew the horse the moment I saw him at Scone; M is not my brand, but I bought the horse; he was for six months in my possession before I lost him; I do not know whether the horse I saw at Scone was branded with any other brand but M; I have not got possession of the horse yet.

            Y. A. Robertson, Esq., examined by the Attorney-General - I am police magistrate at Scone; I saw a horse branded M at Scone, which Browne swore was his; that horse was brought to me by Hall.

            Cross-examined by Mr. Purefoy - I did not examine the brands upon the horse; a constable brought him to me, and said he brought him from Halls.

            Shields re-called by the Attorney-General - The horse that I saw Hall drive away from Satur on the 29th of April, was the same horse that he claimed at Scone.

            The written documents proved were read by the Registrar, and the Attorney-General closed his case.

            Mr. PUREFOY submitted that there was no case in point of law against the prisoner, in as much as it appeared by the evidence for the Crown, that the prisoner had the lawful possession of the horse as poundkeeper, and could not therefore commit larceny of it.

            The ATTORNEY-GENERAL contended that the prisoner's possession was only for a special purpose, which he had feloniously determined.

            Mr. PUREFOY replied, that the cases cited only applied to servants, that the prisoner was not in the capacity of a servant; for that as pound-keeper he had power to sell the cattle, to apply the produce of the sale in the first instance to payment of his own fees, and to pay over the balance to the Colonial Treasurer, so that he could not commit a trespass or a larceny of the horse in question.

            Mr. Justice STEPHEN decided that the evidence of the prisoner having on the 28th April, offered the horse for sale by private contract, if believed by the Jury, was sufficient to show that the prisoner had determined his lawful custody and possession of the horse, so as to make him liable for larceny. The case was certainly somewhat singular, and therefore the point should be reserved for the full court.

            Mr. PUREFOY then addressed the Jury at some length on behalf of the prisoner.

            Charles Carey Dangar examined by Mr. Purefoy. - I live at Scone; I know George Chivers; I saw the prisoner at Chivers's house in March last; a stranger came there on horseback; I would know the horse he had with him; I was at the sale at Satur pound on the 29th of April last; the horse which was sold to Hall at Satur, was the same that I saw with the stranger at Chivers. The prisoner was the poundkeeper at Satur; the stranger at Chivers' said, that he had got a stray horse to impound; the horse was left at Chivers's for that night, and it was the same horse that was sold by the prisoner on the 29th of April to Hall; it was branded M on the shoulder; the horse was sold at about 100 yards from the fence; I do not know whether there was any advertisement of the sale; the horse was impounded by mine and Chivers's advice.

            Cross-examined by the Attorney-General. - I was present at the sale of the two horses; the one out of the pound was sold to Hall by private sale; I heard the prisoner say that the horse sold by him to Hall had been released from pound and bought by himself that morning.

            This evidence closed the case for the prisoner: and the Attorney-General addressed the jury in reply for the Crown.

            Mr. JUTICE STEPHEN charged the jury, and read over and commented upon the evidence fully, leaving it to the jury to say whether at the time of the sale of Browne's horse to Hall, the prisoner had the felonious intention of selling it on his own account.

            The Jury retired for about ten minutes, and upon their return to Court delivered a verdict of Guilty.

            The ATTORNEY-GENERAL prayed judgment against the prisoner.

            Mr. PUREFOY addressed some observations to the Court in mitigation of punishment.

            The ATTORNEY-GENERAL said, that there was six other charges of embezzlement against the prisoner.

            Mr. JUSTICE STEPHEN said, that he should not notice these charges, for that the case against the prisoner upon which he had been convicted, was of so aggravated a nature as to require no ground for looking to any further charges against him; the prisoner's reputed good conduct, and his previous station in life so highly aggravated the heinousness of his crime, that he should be transported for fifteen years, which was the utmost punishment that the law allowed for his offence.

            The prisoner was a young man of three-and-twenty, a free emigrant to this Colony, and said to be respectably connected.

Dowling C.J., Burton and Stephen JJ,  20 November 1841

Source: Sydney Herald,  22 November 1841


IN CHAMBERS, before their Honors the THREE JUDGES.


            This was a c[a]se reserved: the prisoner, who was lately a poundkeeper at Satur, near Scone, had been tried and convicted at the last Maitland Circuit Court of horse stealing, and sentenced to be transported for fifteen years. At the trial s[e]veralpoints were urged and cases cited, by [t]he prisoner's counsel, to show that the sale of the horse by the prisoner, as being his own property, could not amount to larceny, but merely breach of trust. His Honor Mr. Justice STEPHEN, however, sent the case to the jury, reserving the points for the considera[t]ion of their Honors, should the verdict be against the prisoner.

            Mr. FOSTER, for the prisoner, now contended that the conviction was clearly illegal and cou[l]d not be sustained, inasmuch as that the original possession was lawful and bona fide, and therefore that no subsequent conversion by the prisoner to his own use could amount to felony: in support of this position the learned counsel cited several modern decisions, and concluded by observing, that the facts proved in evidence merely amounted to a breach of trust, and not larceny.

            Mr. PUREF[O]Y AND Mr. WINDEYER followed on the same side, - when the ATTORNEY-GENERAL replied at some length contending that the prisoner had, by offering the horse for sale to Shields the Chief Constable, on the day previous to the ac[t]ual sale to Hall, determined his previous lawful bailment, so that he was not a lawful bailee for a special purpose at the time he sold the horse to Mr. Hall, and consequently not having a lawful possession at the time of sale, that he was rightly convicted of larceny, and that the conviction must be sustained.

            The SOLICITOR GENERAL followed on the same side, -- when Mr.FOSTER having replied, their HONORS at once said, that the conviction was clearly contrary to law, and from the authorities cited by the prisoner's counsel, could not be sustained, - that the prisoner was clearly guilty of a breach of trust, by disposing of the horse as his own property, but could not be convicted of a felony, and therefore must be recommended for a free pardon.

            Counsel for the prisoner, Mr. Foster, with Messrs. Purefoy and Windeyer; for the Crown, the Attorney General with the Solicitor-General.

Published by the Division of Law, Macquarie University