A second count charged the property as belonging to some person or persons unknown.

Samuel Horne.  I apprehended the prisoner on the 12th of February last; I know that a warrant had been issued against him 12 or 15 months before; I met him on board the steamer between Sydney and Parramatta; I told him I apprehended him under a warrant for having stolen horses in his possession, I had not the warrant with me.

John Thorn, Chief Constable at Parramatta.  I remember seizing some horses on the Western Road in December, 1834 - I understood that prisoner had some horses in a paddock belonging to a man named Snowden, which wee stolen from Robert Armstrong, it was on that account I seized them, prisoner came when I was in the paddock; he cautioned me against taking them as they were his own property; there was nine head altogether, I brought them to Parramatta and placed them in the pound; prisoner did not follow me, he took some other direction; the horses remained in the pound 9 or 10 days in custody of the police, during that time prisoner never came to claim them; they were claimed and given up to Robt. Armstrong at the police office; there was a warrant issued for Warby's apprehension; but he could not be found, until about two months ago; he is the same person as claimed the horses; a constable named Wagdon was authorised to take him, but I believe he did not; Snowden was taken up - tried, and acquitted; the horses were branded A, a person named Jackson saw them whilst they were in the pound.

Cross examined.  I have known prisoner since he was a child; never knew any thing against him until the present transaction.

Re-examined.  Armstrong is insane and cannot come to give evidence; he appeared on the trial of Snowden; it is since then, he was taken unwell; I can swear he is now insane.

Daniel Jackson.  I live near Penrith, and keep a mill and farm; I recollect seeing the prisoner sometime near Christmas in the year 1834; I was riding up towards the Pilgrim Inn with one of my daughters, when I saw the prisoner and Snowden driving some horses; my daughter took a fancy to a mare and asked me to purchase it; there might be twenty altogether, they were a very rare lot of horses; I asked Snowden about the horses, but as he gave me a very impertinent aswer [sic], I said nothing more to him; the next time I saw the horses was in the pound at Parramatta; I should say they were the same lot of horses, but could positively swear to the mare; they were not then in such good condition as when I first saw them, they had been knocked about; when I first saw Snowden and Warby with the horses, they were dirty; I did not recognise them, or I should not have spoken to them; Warby I had known from a boy.

Cross-examined.  Never had the least reason to suspect the honesty of Warby; prisoner I understood was an overseer to Mrs. Armstrong, this I only know by hearsay; there was some dispute between Mr. Armstrong and Mrs. Armstrong, trustees; I don't know whose horses they were.

At this stage of proceedings Mr. Justice Kinchela intimated, that as Armstrong was not forthcoming to identify the horses, as being his property, he thought there was not legal evidence enough to support the indictment.  A lengthy discussion then took place between the counsel as to whether under such circumstances the crown could fall back upon the second count.  The Attorney General declined to take up unnecessarily the time of the court by going on further with the case.  It therefore went to the Jury upon the evidence given as above, they having retired for a short time returned a verdict of Not Guilty.  Remanded.