[stealing]

R. v. Earle

Supreme Court of Van Diemen’s Land

Montagu J., 6 May 1834

Source: Colonial Times, 13 May 1834

            James Earle was placed at the bar, charged with stealing, on the 18th April last, two bottles of wine, value 2s., one waistcoat, value 5s., and one pair trowsers, value £2, the property of Mr. Charles Carmichael Smith.

            Mr. Charles Carmichael Smith examined. - Resides at Roxborough-house; knows the prisoner, who lodged in the same house with witness; recollects the 18th April last; returned home about 11 o’clock on that evening, and missed two bottles of wine. The prisoner had witness’s clothes on; witness taxed him with having stolen them, together with the wine; the clothes produced are witness’s property; the waistcoat is worth 5s., and the trowsers £2. The prisoner was in liquor.

            The constable who apprehended the prisoner was here called, who proved his apprehension and intoxication.

            The prisoner, in his defence, said, he had borrowed wine of the prosecutor before, and was on terms of intimacy with him. Was about to tell him of the liberty he had taken in borrowing his clothes, when, instead of hearing him, prosecutor sent for constables. It was not his intention to leave the house until the prosecutor’s return; he hoped, therefore, the Jury would acquit him of any felonious intention.

            Charles Carmichael Smith recalled by His Honor. - Has resided at Roxborough house about a month; lent the prisoner a bottle of wine a short time before he missed the one, for stealing which the prisoner is now before the Court; found the bottles on the prisoner’s dressing-table; they were nearly empty. Does not recollect the prisoner tell him he had taken the liberty of borrowing his clothes; he might have done so.

            His Honor then addressed the Jury. It is not every man who takes away an article that is guilty of felony - the very essence of the offence is the intention of depriving the owners of the property. The circumstance of the prisoner having borrowed wine of the prosecutor before, is greatly in the prisoner’s favor; and again if he intended to steal these articles, would he have gone and sat up stairs and remained until the owner’s return. The manner in which the prosecutor gave his evidence was truly disgusting, towards a person apparently in his own station of life. A slight word passing between the parties may have given a very different colouring to the real nature of the transaction, to that which should really appear. “You have heard Gentlemen, also, that the prosecutor says, the prisoner had been drinking, but was not drunk, while the constable swears that he was quite drunk. There seems to have been a disposition, on the part of the prosecutor, to do the prisoner all the injury in his power.”

            Verdict - Not Guilty.

            His Honor then addressed the prisoner in the most feeling manner, stating, that he was sorry to see a young man of his apparent respectability placed in such a situation, and he trusted the escape which he now had would operate as a warning to him throughout his future life. His Honor said, he was satisfied that he did not take the articles with the intention of depriving the owner of them, and as respected his character, he did not think the slightest stain was cast upon it by this prosecution.