[stealing, mens rea]

R. v. Duff

Supreme Court of Van Diemen's Land

Montagu J., 6 May 1834

Source: Colonist, 13 May 1834

William Duff, charged with stealing a bottle of wine, a waistcoat, and a pair of trowsers, from Charles Carmichael Smith. It appeared on the evidence of the prosecutor himself, that the prisoner and himself had, for some time past, resided in the same house, in two adjoining apartments, and that they had been on intimate terms, so much so, that they had frequently visited each others room, and Smith had lent him some wine. On the evening in question, the prisoner, as usual had gone into the prosecutors room, and not finding him there, he did not think it any harm to borrow a bottle of wine, part of which stood unconcealed in the prisoner’s room, when the prosecutor came in. Intending to go out, the prisoner took the liberty to put on a waistcoat, and a pair of trowsers, the property of the prosecuter; but he waited till past ten o’clock in the evening for the prosecutor, as he would not go out in the clothes without permission, and did not attempt so to do till the prosecutor’s return, who had him instantly apprehended.

His Honor the Judge was clearly of the opinion that the prisoner could never have taken the articles with a felonious intention, without which a conviction could not be established. However the prisoner read a written defence, his voice often being interrupted, his feelings being greatly affected, and sometimes he could scarcely refrain from shedding tears.

The Jury, without retiring from the box, pronounced a verdict of Not Guilty. His Honor gave the prisoner a suitable admonition, in the way of caution, as to his future conduct in this Colony, when many would be glad to effect the ruin of a young man of his character and description.