[stealing, food rations – capital punishment, appointment of executioner – Crown mercy, condition of pardon that prisoner become executioner]

R. v. Sherman and Freeman

Court of Criminal Judicature

Collins J.A., 29 February 1788

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, State Records N.S.W., 1147A[1]

[25] William Sherman and James Freeman brought before the court charged with feloniously and fraudulently taking and carrying away, 15 half pounds of flour, value 15 pence, the property of Michael Dennison, Zachariah Prue, Robert Abels and William Waterhouse.

            The prisoner having pleaded not guilty.

Michael Dennison, was sworn. He deposes that the prisoners are known to him; that last Sunday night, having end their supper, being the people named in the charge, went out of their tent between 7 and 8 o'clock, returning to it about 8. They found on their going into the tent some person or persons had been in it during their absence. That on searching their box, the flour named in the charge was missing. That some bread was there and some tobacco. That on missing the flour they searched in the tent round them, but could not find it. That on the Wednesday morning following, being cooking his breakfast, the cook at the copper, challenged William Sherman, with having brought a pudding to the copper that was one of his own. He said he had found it in the woods, but on looking over the bag, he (this evidence), found it was his, and that had been stolen with the flour. On which he took him, the prisoner, Freeman to Major Ross. He took Freeman to Major Ross because Freeman had said they were together when they found the flour.

John Roberts being sworn deposes that he is a cook inspected one of the coppers. That he was informed by Mick Dennison on Sunday morning last, that he had lost some flour, and requested if he saw any one come to the coppers with a very [26] large pudding, that he would let them [enter into] it. That the prisoner, Sherman came early on Wednesday morning about 7 o'clock to the coppers. He said to him your pudding will not be boiled in time. The prisoner said it would. On questioning him about the size of the pudding, he said it was his and his shipmate's. On asking him how he came by it, he said in a jeering, laughing way, that he had stolen it. When he spoke about the size, he said this was four or five pounds of meat in it, but on turning out, a small piece of meat was found in it. Michael Dennison emptied it into a bowl and put it into a swag and into the coppers, and the evidence giving from the coppers left word it should be given to Dennison. That the prisoner was at first unwilling to go away without his flour. That he heard Dennison say afterwards he had found it out, alluding to his discovery of the bag. That he did not see any thing of Freeman in the business.

            John Hayden being sworn deposes that, he never saw the prisoner before he met him at the coppers. That he was on Wednesday morning last, when the prisoner Sherman came with a pudding. That the cook questioned him as to its size, and how he had gotten it. That he sent for Michael Dennison, who on coming took the pudding and turned it into a bowl. That he said there was about [one] man's allowances of [bread] in the flour. That on Freeman's coming to the copper, being sent for Dennison, he asked him what [and size of] bag [the] flour was in. That on giving all to Freeman's tent, the bag the flour was in, and was the pudding of Dennison, was found in the tent, with a pound … or more flour in it. That he said he found it behind a tree in the woods, with the flour in it.

[27] Joseph Robinson being sworn, deposes that he was at the coppers on Wednesday morning; said when the pudding was taken out that the cook asked him how he came by such a pudding. “Came by it says he, [way] I stole it”. He asked him how he came by such a pudding when no flour having been served out the week. That Michael Dennison came and [tallied] out the flour. That he supposes there were eight or nine allowances of flour in it and a small piece of meat. That on desiring Sherman to go for the bag that flour was in, he turned to go, saying it was Freeman's but he would fetch Freeman. On Freeman's coming, they went together to fetch the bag. That when the bag was seen, Dennison said it was his. That there might be about four allowances of flour in it, about two pounds. On his being asked how he came by the bag and the flour, he said, he found it in the wood. The two prisoners were then taken to Major Ross.

            The prisoner Sherman said in his defence, on Tuesday afternoon, Freeman being at work in the woods, says to him, that he had found a bag of flour in the woods which he shewed him. That they took the bag to the tent, and there being a small hole in it, put it into a larger bag. That the next morning, Freeman cut up some meat and made a pudding, which he Sherman took to the copper.

            The prisoner Freeman, says he found the flour in the woods on Tuesday afternoon. That he picked it up and brought it down to Sherman .

            [28] The court is of the opinion that the prisoners William Sherman, is guilty, to the value of ten pence, and to adjudge him three hundred lashes on his bare back, with a cat of nine tails, and such time and place, as to the Governor shall think fit.

Guilty 300 lashes. Pardoned.

            James Freeman – guilty – death

            Guilty – death – pardoned on condition of being the common executioner.

David Collins J.A., James Campbell, William Bradley,

Jonathon Shea, James Meredith, John Creswell, Robert Kellow .

Approved A. Phillip.

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