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

R. v. Burgess [1854] NSWSupCMB 5

stealing, cattle

Supreme Court of New South Wales, Moreton Bay

Therry J., 20 November 1854

Source: Moreton Bay Courier, 25 November 1854, p. 2

John Burgess, on bail, was indicted for stealing a cow, the property of Joseph Fleming, at Ipswich, in August last. A second count charged him with receiving. Mr. Faucett, with Mr. Walsh as attorney, appeared for the defence.

Daniel Allone, constable in the Ipswich Police, deposed that on a morning in August last he saw a cart bringing a carcass of beef into Ipswich, and going towards Mr. Burgess' shop. Witness went down to Ford's slaughter house, where cattle was usually slaughtered, and was there shown the ear of the beast just killed. A part of the ear was cut off, the remainder being slit up. Witness afterwards got the hide from Mr. Burgess. It was branded JF, and G. The brand was illegible until the hide was washed. Witness, with the Chief Constable, Mr. Fleming, and Burgess, examined the hide at the lock up. Mr. Fleming said that it belonged to one of his beasts. As soon as Mr. Burgess saw the brands on the hide he said it was certainly a mistake. Witness saw no symptoms of any attempt to disguise the brand. Witness had received the usual notice of Burgess's intention to slaughter.

Michael Connor deposed that he was Chief Constable of Ipswich in Aug. last, and was in the habit of receiving slaughtering notices for Constable Allone, who was Inspector of Slaughter Houses. On the morning of the 28th August he found at his house a notice of Burgess's intention to slaughter. This notice must have been left on the night before. Witness was present when the hide was examined on the 29th August. Mr. Burgess was there, and Mr. Fleming. When Burgess saw the brand the hide had then been washed.

Joseph Fleming deposed that he resided at Long Pocket, near Ipswich. He saw the hide alluded to by the other witnesses. It was the hide of one of witness's beasts, and bore his brands. Had heard of persons making mistakes in slaughtering cattle, but never made any himself. Mr. Burgess told witness that it was a mistake and offered him the value of the beast but witness declined it, stating that the case was in the hands of the police.

This being the case for the Crown, Mr. Faucett addressed the jury, commenting in terms of indignation upon the hardship of a respectable man being placed in a felon's dock to answer a charge of felony, supported by such slender proof. He then proceeded to call the following witnesses.

John Barnes deposed that he had been in Mr. Burgess's employment for twelve or eighteen months. Had charge of his cattle at a place called Cammie's Swamp, about 10 miles from Ipswich. There were five or six head of cattle branded HF. The beast killed on the 28th August was running for some months amongst the cattle. Witness thought that the brand was HF, and that it belonged to Mr. Burgess. As this cow had a broken hoof, and was besides barren, witness advised his mistress to have it slaughtered. Mr. Burgess was at this time very ill in bed. Accordingly when witness brought the beast into Ipswich, with some others, Mrs. Burgess told him to take it to the slaughter house. Witness did so, and it remained there from Tuesday until the following Monday, when it was slaughtered. While at the slaughter yard the beast was driven out to water daily. Mr. Burgess was ill all this time. All that was done with the cow that was slaughtered was done quite publicly.

John Shurning deposed that he was a butcher in Mr. Burgess' employment, and slaughtered the cow alluded to, on the 28th August. There was no attempt at concealment, but everything was done openly. Mr. Burgess was ill at the time. The brand was not quite legible, but witness took it for HF.

Defendant's counsel stated that he did not think it necessary to proceed further, and his Honour charged the jury, dwelling particularly upon the favourable aspect of the case as affecting the prisoner. The jury, without retiring, returned a verdict of Not Guilty, in which his Honour stated that he fully concurred.

Published by the Division of Law, Macquarie University