[death recorded - stealing, cattle]

R. v. Steel and Wells

Supreme Court of Van Diemen's Land

Montagu J., 29 November 1834

Source: Colonist, 16 December 1834

George Steel and Samuel Pullen Wells, were places at the bar, charged with stealing an ox. The information contained four counts; the first charged the prisoners with stealing an ox, of the value of £5, the property of some person or persons unknown; the second count charged them with killing an ox of the same value, the owner being unknown; the third count charged then with stealing an ox of the value of £5, the property of Ann Turnley, and the fourth count with killing an ox of the same value, the property of Ann Turnley.

The Attorney General conducted the case on the part of the Crown, and Mr. Gellibrand the defence.

The Attorney General said, the only observation he should make was, that the prosecution arose out of the commitment of a man named Moyes, who had been tried and found guilty of sheep-stealing; and that the indictment charged the prisoners with stealing an ox and cow, whereas they stole but one animal- the indictment being so framed in consequence of a deficiency of evidence as to the sex of the animal.

Richard Moyes examined – Before witness was committed for trial he was in the service of Mrs. Bromley for the last five or six months; the prisoners, when witness was committed, resided at Hamilton; believes the prisoner Steel was overseer to Mrs. Bromley; he was either master or overseer of Mountford farm- cannot say which; Wells had been residing on Mrs. Bromley’s farm three or four weeks; witness had not often seen him at Mrs. Bromley’s farm; does not know a place called Peckham Vale; does not know whether Wells was overseer to Mrs. Turnley; when witness was killing the sheep for which he was tired, saw a skin in the barn, it was the skin of a brindle beast; witness told Mr. Roadknight that there was such a skin in the barn, this was about the 17th or 18th of September. Believes Steel and Wells brought in the beast; they were riding after cattle-did not see them bring the beast in; among the cattle witness saw in the yard, there was a brindle beast; cannot say in what direction the prisoners brought in the cattle. The barn adjoins the stock yard. It was above an hour after the witness saw the brindle beast alive in the yard, that he saw it dead in the barn; Steel skinned it. Wells was in the barn at the time; there were several people about the place at the time. Between the time witness saw the beast in the yard, and his seeing it dead in the barn, he went to get his dinner at the hut about two hundred yards from the barn; the barn door was open when the witness went up, the beast was not killed at the usual slaughtering place, because it was a very wet day; does not know what became of the head of the beast, witness did not see it; the skin was hung across the tie-bean of the barn-it was not branded. Witness thinks it was about fifteen months old-cannot say whether it was a heifer or a steer. Had been at Mrs. Bromley’s off an on for the last two years; Steel was there the whole time. Cannot say what cattle Mrs. Bromley or Steel had-there where none near the house-there might have been some on the farm. Witness had heard that Mrs. Bromley had one or two milking cows in the bush. Believes the hide produced to be the one witness saw in the barn. Mrs. Bromley’s bullocks were branded E.B. There was a skinned beasts’ head in the kitchen on the day the brindle beast was killed.

Cross-Examined by Mr. Gellibrand. – Was not stock-keeper while in Mrs. Bromley’s services has occasionally brought in the cattle; witness has been lime burning for the last six months. Witness was apprehended on a charge of sheep-stealing on the 14th of October; it was either on the 14th or 15th of October, that witness told Mr. Roadknight about the skin lying in the barn it was about a quarter of a mile between Mrs. Bromley’s farm and the township of Hamilton. Wells and Steel came with some cattle across the plains; it was sometime in the afternoon that Steel and Wells brought the cattle across the plains. Witness knew that a year and a half ago Mrs. Bromley had cattle in the bush; they were branded E.B. on the near hip; will swear that he did not cut a strip off the hide produced.

By the Attorney General.- The piece may have been taken off, it was a usual way of effecting a brand; Mrs. Bromley brands on the near hip; the skin produced appears to have been branded on the back.

William Roadknight examined.- Went in consequence of some information to Mrs. Bromley’s farm, and found the hide produced; witness did not find the hide in the exact spot described to him. In the course of the afternoon, witness examined the hide and saw a brand, but could not tell what the brand was; the brand was on the off rump, but was not perfect; the brand might have been the letter T, but could have been the letter E; the brand was not more fresh when the witness first saw it, than at present. Was in the Police-office when the information of Moyers was read to the prisoners; after the descriptions were read, Steel said the beast was Mrs. Bromley’s, and was branded with the letter E; Wells also said it was Mrs. Bromley’s, but on the skin being shown to him, he said he would not swear it was not the letter T. Has seen a fire-brand said to belong to Mrs. Turnley applied to the brand on the skin produced; the brand GT the brand on the skin was larger than the iron, the relative proportions of the letter T had not in; creased; if a beast is branded young, the brand increases according to the growth of the beast; witness thinks it possible the brand on the skin produced might have been made by an iron stamped GT; constable Baxter was with the witness when the hide was removed. The barn is about a quarter of amile from the township of Hamilton; Peckhan Vale, Mrs. Turnley’s property, is about six miles from Mountford cottage-witness resides about a mile and a quarter from Mountford cottage. Has not heard that Mrs. Bromley had any cattle except working bullocks.

Cross-examined.- Does not believe that a piece has lately been cut off near the brand on the hide produced; was present at the examination of Wells and Steel; the man Moyers was not present, his deposition alone was read to Steel and Wells; does not know what brand Mrs. Bromley’s increase bore, has not seen Mrs. Bromley’s increase running branded E only.

Mr. Swan examined.- Knes the late Mr. Turnley, he had some property called Peckham Vale, at Hamilton; has not known another Turnley for the last five years, knows a man named Bratcher, who was in service of Mr. Turnley; has never had any conversation with Well’s on the subject of Mrs. Turnley’s property.

Henry Bratcher examined.- It is about six miles from Mrs. Bromley’s house to Peckham Vale; Peckham Vale was formerly the property of Mr. George Turnley; was overseer to Mr. Turnley about eight months; remembers seeing a one eyed ginger coloured cow at Peckham Vale; belonging to Mr. George Turnley; the cow had a calf by its side, which was taken into the yard and branded; the skin produced witness should call a dark brindle; witness branded the calf himself; it would be now about twenty months old; thinks it was branded on the near rump; is not positive; the last time the witness saw the calf was in February, 1833. There is part of a brand on the hide produced, but cannot say what it is; it looks like part of the letter T; the brand on the skin is larger than the branding iron; cannot state the sex of the beast to which the skin produced belonged.

Cross-examined.- Is not much accustomed to cattle; never knew a little ginger calf to turn so dark as the one produced.

Jacob Muscal examined.- Mr. Turnley’s farm at Hamilton is called Peckham Vale; Mrs. Turnley purchased a male ginger calf of Mrs. Elliot; it was branded GT on the off rump. The hide produced is something like that of the calf the witness branded, but it is a great deal darker; cannot say whether a calf of the colour the one the witness branded ever could become so dark as the one produced. While Wells was overseer to Mrs. Turnley witness often saw the calf.

Cross-examined.- Recollects assisting to brand the brindle calf; does not know whether it was the near side or the off side on which it was branded.

Stephen Grindey examine.- Resides at Peckham Vale; was servant to Mrs. Turnley while Wells was overseer; there was a brindle calf missing; Wells told witness and another man to get Mrs. Turnely’s cattle; a fortnight or three weeks before the time witness saw the calf on the tiers; witness saw the calf three or four times; it was dark brown with some white on the belly; the calf was branded on the off side; the produced is not the hide of that calf; there is no brand upon the skin produced.

Thomas Martin Fenton, Esq., examined.- Is a good judge of cattle; they invariably grow darker as they grow older; some colours more so than others; beasts that are of a reddish colour, are more likely to get dark than any other colour. There is a part of a brand upon the skin produced; does not think it could have been an E.

Cross-examined.- The change of colour would naturally depend upon the number of times the animals changes its coat; one of twenty months old would not be likely to have changed his coat more than once; cannot say whether the skin produced was a winter or summer coat of hair.

John Offer examined.- This witness merely proved the will of the late Mr. George Turnley, by which all his property is left to his widow, Ann Turnley.

Thoams Williamson examined.- Is assigned to Mrs. Bromley; was so in October last; recollects Richard Moyers being apprehended for sheep-stealing; saw Wells that day with the head of a bullock which appeared to have been recently killed.

Cross-examined.- Steel was not at home when Moyers was apprehended; he had not been at home for a day or two previous.

Francis Jubee examined.- Recollects on a Tuesday, early in October, seeing a fresh skin in the barn at Mountford, saw Steel sometime in the course of the afternoon; saw Wells also with a fresh bullock’s head; there was a small piece of skin attached to the lower lip; it was a red colour.

This was the case for the Crown.

The prisoners in their defence declared their innocence. Steel said that the beast was Mrs. Bromley’s property, and Wells said that he had known the beast some time as being Mrs. Bromley’s property; that he was at the time of his apprehension on a visit to Mrs. Bromley, and merely assisted Steel to kill the beast.

Edward Burns deposed to having been stock-keeper for Mrs. Turnley, and described the calf the prisoners were accused of stealing as having a white strip down the back. The hide produced, he said was not at all like the skin of Mrs. Turnley’s calf.

John Collett examined.- Has been a servant to Mr. Cawthorne for the last 6 or 7 years; recollects a one-eyed ginger cow, belonging to a man named Riley, gracing upon Mr. Crawthorne’s land. The cow had a brindle calf, with white back and belly. The skin produced is not at all like the skin of either of the ginger cow’s calves.

Mr. Gellibrand submitted that there was no case for consideration of the Jury, but was over-ruled by his Honor, who proceed to sum up the case to the Jury which he did in the most impartial manner, recapitulating nearly the whole of the evidence and commenting upon it as he proceeded, and concluded by pointing out to the Jury the necessity of being satisfied that the property had been proved to belong to Ann Turnley, before they could find the prisoners guilty on the last two counts of the information, and requesting, if they found the prisoners guilty, to be informed as to their belief relative to the ownership of the beast.

The prisoners retired for about half an hour, and found both the prisoners guilty on the second count of the information.

Source: Colonist, 16 December 1834

George Steel, and Samuel Pullen Wells, were next brought up to receive sentence.

Mr. Gellibrand rose and moved for an arrest of judgement on the following grounds:-

1. – That the Jury ought to have been clearly directed to threw out their consideration the whole of the evidence which was adduced relative to the two last counts.

2. – That if the prisoners had been tried upon, and evidence adduced as to the second count of the information only, there would have been no case whatever to go to the Jury.

3. – That as the driving of the cattle was partly proved, if the Jury found the prisoners guilty at all, they should have been found guilty of stealing and not killing the beast.

His Honor said he would remand the prisoners, and take the opinion of the Chief Justice as to Mr. Gellibrand’s objections.

Pedder C.J. and Montagu J., 15 December 1834

Source: Colonist, 16 December 1834[1]

George Steel and Samuel Pullen Wells, were yesterday brought up for judgement, and each had the sentence of death recorded against them, the Judges having overruled the objections taken by Mr. Gellibrand. We were in hopes that the Judges would have taken a more merciful view of this case, especially as regarded Wells, for we cannot conceive what indncement he could have to become knowingly accessory to a felony in the present case. Indeed, Mr. Justice Montagu stated, that the sentence on Wells should be carried into effect, with far less severity than that on Steele, whose guilt he considered far more aggravated. Of course, the Judges have given every proper attention to the pints raised by Mr. Gellibrand; but the public opinion is, that the conviction is on very slender and unsatisfactory evidence.

Notes

[1] 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).