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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Giles and Elliott [1833]

burglary - crown mercy - receiving stolen property

Supreme Court of Van Diemen's Land

Montagu J., 8 August 1833

Source: Colonist, 13 August 1833

Richard Giles, a free servant to Mr. Gatehouse, brewer, was indicated for burglariously entering the dwelling-house of Mr. Dixon, at New Town, and stealing a sum of money therein. Mr. Dixon proved the burglary, and identified a £5 note, produced as having been part of his property stolen at that time. The note had been changed by the prisoner at Mr. Lee's public-house, at New Town. District Constable Wright proved to the prisoner having confessed to him and another man, that "his regulars" but of the robbery amounted to £11. Mr. Wright underwent a rigorous cross-examination by Mr. Justice Montague, it appearing to His Honor most extraordinary how the prisoner could make such an admission to a man, who was a perfect stranger to him, and not only that, but a constable also. He was of opinion, that there must have been some inducement - none however was proved; and the prisoner was found Guilty, and remanded for judgment till the last day of the Session, with an intimation that the extreme sentence of the law would be passed, and carried into execution on him. Under all the circumstances we should hope his life will be spared

. . .

John Elliott better known as "flash Kiddy Elliott", was indicted for stealing, or receiving and knowing them be stolen several sums of money, the property of Mr. Mason, butcher, Liverpool-street.

Mrs. Mason, in her examination by the Attorney General, stated that, on the night of the robbery, she was awakened by the crying of one of her children. There were two in the bed, one at each side of her. On awakening, she immediately saw that the house had been robbed. She ran to the door, and, on giving the alarm, Constable Peel came up, and sent in search of the robbers. From the low tone of voice in which the witness gave her testimony, it was difficult to catch the half of what she said. Constable Peel deposed, that whilst proceeding up Harrington-street, he could distinguish the voices of two persons in conversation, and after listening a short time, he proceeded in the direction, and found the prisoner at the gate of Mrs. Julia Julian (a pretty name), and where he said he had "come for to see a woman." On searching his person, a quarter dollar was found, which had a hole in it, and another piece of silver coin, which Mrs. Mason deposed to having taken the day before. Constable Peel further stated, that the shoe marks in Mr. Mason's yard, corresponded exactly with the size of the prisoner's shoe, and which was remarkably small.

Mr. Mason deposed to his having been from home at the time the robbery was committed, and that he left £400 in the box; in the bed room, which had been stolen therefrom; he knew nothing of the prisoner whatever.

Mr. Lewis of the Rising Sun, was called for the defence. His testimony merely went to shew that the prisoner, in company with another, called at his house on the night of the robbery, about 11 o'clock. They had a bottle of rum, which they took away with them. The prisoner was intoxicated; the witness changed a pound note for them, but could not identify either of the prices produced in Court, as part of that change.

Two other witnesses were then called, but did not answer; and the prisoner observed "that there was no want of witnesses against him, they were sure to be at hand."

Mr. Justice Montague summed up at considerable length, remarking on the singularity of the circumstance, how the keys could be abstracted from under Mrs. Mason's pillow, without her knowledge, more especially as her servant maid slept so nigh her.

The Jury retired for a short time, and on coming into Court delivered a verdict of Guilty.

The prisoner was ordered to be remanded for till the last day of Session; when it was intimated, as in the case of Grant, sentence of Death should be passed on him.

Throughout the whole trial, the prisoner evinced great coolness and attention, as he proceeded, and on being removed from the bar, he protested his innocence to the charge imputed, and wished his Creator might deprive him of his existance where he stood, if what he stated was not the truth.

This trial created considerable interest, from the amount of money which had been taken, as well as other circumstances connected therewith. It is at all times better that twenty rogues should escape, than that oneinnocent man should suffer. There is a very prevalent opinion abroad, that this man is innocent of the crime imputed to him; and we have heard it said, and that by good authority, that such is the sentiment entertain by Mr. Mason himself.

Montagu J., 14 August 1833

Source: Tasmanian, 16 August 1833 [1]

Giles and Elliott (see the reports in our last number) were brought up for sentence. His Honour, addressing Elliott, said - "I cannot think you are innocent - indeed, I cannot. Unless Mrs. Mason had sworn falsely, and perjured herself, which we must have found out, I do not see how you could avail yourself of any discrepancy in the evidence. I have my doubts, however, of your being a principal in the robbery; but I have no doubt, from the evidence, that you were concerned in it. Two pieces of silver coin were found upon your person, almost immediately after the robbery, which were positiviely identified by Mrs. Mason. Still, as there is some doubt of your being principally concerned in the robbery, I shall solicit His Excellency the Lieutenant Governor, to spare your life, upon condition that you shall be sent to Port Arthur for life." The prisoner again declared his innocence, and vehemently protested that he was as guiltless of this offence as the child unborn.

In passing sentence on Giles, His Honour intimated, that he would recommend to the Lieutenant Governor not to suffer the extreme sentence of the law to take effect; but he could not answer for the result. He advised the prisoner, therefore, to prepare for the worst, and make up his mind for a speedy departure from this world. His Honour, however, would use all his influence - but even if the prisoner's life were spared, he would be certainly sent to a penal settlement for life. Both Elliott and Giles seemed grateful for the comparative leniency of their sentences, and left the bar in a respectful and humble manner.

Notes

[1] See also Colonist, 20 August 1833: "Giles and Elliott were brought up for judgment, the former for the robbery at Mr. Dixon's, on the New Town Road, and the latter for the robbery at Mr. Mason's, Liverpool-street - Death recorded."

Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out. Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death. If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded. The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania