[stealing, horse]

R. v. Allen

Supreme Court of Van Diemen's Land

Pedder C.J., 26 January 1838

Source: Hobart Town Courier, 2 February 1838

Before a Military Jury

The Attorney General opened the case; and in the course of his speech dwelt strongly upon the probability, that the horse in question might be Mr. Gregson’s, and yet the prisoner not be [sic] guilty of feloniously taking or receiving it.

Immediately after the jury was sworn, the necessity of their viewing the horse became apparent; but the mode of exhibiting the animal to them was not so easily disposed of; it was proposed that they should view it through the window, but this was overruled by the jury themselves, as inconvenient and ineffective; it was then suggested that the animal should be brought in to the Court house; but even this proposition, which was perfectly feasible and by far the most eligible, under all circumstances, was, we know not why, abandoned; and the jury were finally allowed, though with great misgivings on the part of the Chief Justice, to leave their box to examine and satisfy themselves of the properties and general appearance of the disputed quadruple. Upon the return of the jury into court, His Honor could not help expressing his doubts and fears of some communication having been made to the jury; it was not, as far as we could understand His Honor, that any one of the jury would listen to them, but he argued that they could not prevent persons looking on from making remarks, nor could they under these circumstances avoid hearing them. The reiteration of the doubts and fears of the Chief Justice, however, evidently wounded the feelings of some of the jury in as much as it caused the foreman, Capt. Peddle, to observe, that there was not an officer in that box, who would not despise such a meanness. His Honor replied, “I meant nothing disrespectful to you, Sir,” to which Captain Peddle rejoined “well, Sir, it is my duty to respect myself.”

The case, at length proceeded, the first witness on behalf of the prosecution being T. G. Gregson, Esq., who gave his evidence as follows:

I live at Risdon; have seen the horse outside this morning; have known it from 15 to 16 months; it was in the possession of Mr. Abbott; I purchased the horse of Mr. Abbott for the purpose of racing him at New town last year; he ran there; I afterwards brought him to Risdon; rode him for about a month, and then turned him into the bush on my own land; I frequently saw him up to the latter end of June; I then lost sight of him for about two months; after that period I caused search to be made for him; I next saw him in the beginning of December, in this town opposite Mr. Melville’s office, in the possession of the prisoner who was riding him; Mr. Rawlings at my suggestion called him to stop; Allen did so; I heard Rawlings question Allen as to where he got that nice colt; Allen replied, “yes it is a very nice colt,” and proceeded to give its pedigree; he said it was out of a one eyed mare, but he did not know by what horse; it was by some horse in the bush; some observations passed between Rawlings and Allen; I think Allen said, “I’ll sell you the horse;” at the time the horse had the appearance of one being broken in; he had a second bit on and a martingal; I walked round and looked at him; Allen rode off; I next saw the horse 8 or 9 days after in Macquarie street; I had come to town to have Allen apprehended; I saw the horse in Hedger’s possession; the same that I had seen in the possession of Allen; I took possession of him; the horse which the jury have seen is the same. The character and points are those of a race horse; he was a brown bay, two or three white spots on his back, star on forehead, mark on his off hock, and a mark on the neck of a peculiar kind from bleeding; I bled him; the phlegm was very large; it is usual to pin up the orifice, but on that occasion I used paper; Mr. Wilson was present; it was at his suggestion I put the brown paper over it; the tail was cut square up to the dock; it was a remarkably quiet creature; I have since examined him very minutely; there is the mark on the hock, and the saddle mark, and the roller mark made by the buckle; also a remarkable appearance oft the hair of the tail; all these marks were now on the horse and may be seen; I have been acquainted with horses five or six and thirty years.

By the Judge. -- The mark on he neck requires close inspection; the other marks are obvious; there was nothing remarkable in the horse when I saw him with Allen; he was going steady; he was two years old.

In the cross-examination of the witness nothing of importance was elicited. Mr. Gregson’s evidence was followed by that of Mr. William Kearney; Mr. John Pieror; Mr. B. E. O. Wilson; Mr. William Athorne; Wm. Cox; Mr. John Eddington; Mr. John Petchey; John Doran; Mr. J. O. Gage; Mr. Edward Abbott; John Page; Mr. James Sharpe; Mr. William Carter; Mr. Hedger; Mr. Lascelles and Mr. George Davis; by the testimony of almost all these witnesses it was proved beyond a shadow of doubt, that the horse in question was the property of Mr. Gregson; but yet none of them went to criminate Allen, if perhaps we except the evidence of Mr. Davis, who it appeared in the cross-examination, was not on good terms with the prisoner.

The case for the prosecution having terminated, Mr. Rowlands addressed the jury at some length in behalf of the prisoner, and proceeded to call his witness in his behalf. We gave one at length in fairness to Allen and to shew the grounds upon which he presumed the horse to be the one which he had lost.

Samuel Davies, of Old Beach recollects a strange colt getting into his paddock the latter part of May last; it was fenced in all but the water part; the horse was a dark bay colt with star on the forehead; turned it out of his paddock and saw it join Mr. Gage’s horses in his paddock; had a conversation with Allen who said he understood that there was a strange colt in Mr. Gage’s paddock; and wondered how it got there; witness told Allen that Mr. Austin said he had been informed by Cox that it had swum across the water; Allen asked witness to go over to Mr. Gage’s, but he did not go; next day Allen and Jervis came and asked him to go and see if it was the same colt; witness went and said it was; the horse could not have got into witness’s paddock without he jumped three or four fences; the horse I have seen to day [sic] is the same; Allen said it was surprising how the horse could have come on that side of the water, it must have been worried by dogs; the horse appears different now to what it was in Mr. Gage’s paddock.

Cross-examined. -- In May he was in a fair condition; when witness saw him in Mr. Gage’s paddock in October he was very poor; known Mr. Gregson’s residence; none of his land joins Mr. Gage’s; has known the river Derwent 19 years; has seen plenty of horses swim across it, and bullocks too.

Several witnesses followed, from whose evidence it appeared, that a horse corresponding in colour and description had swam [sic] across the Derwent. The following gentlemen gave evidence in favour of the character of Allen; C. McLachlan, Esq.; -- Fletcher, Esq.; W. T. N. Champ, Esq.; J. Beamont, Esq.; C, Swanston, Esq.; John Lee Archer; W. Bunster, Esq. and Mr. Joseph Morgan the Chief Constable. The trial concluded somewhat abruptly just as the evidence of Mr. Rawlings had commenced; the jury who had sat patiently from ten in the morning until nearly seven in the evening, evidently considered that it would be a waste of time to proceed with any further examination of witnesses, as no new facts were elicited, and their verdict was taken to the following effect -- “The jury have no doubt that the horse is Mr. Gregson’s but acquit the prisoner.”

Pedder C.J., January 1838

Source: True Colonist, 2 February 1838[1]

On Saturday, the famous horse stealing caseoccupied [sic] the Court all day.

John Allan was charged with stealing a race horse, the property of Thomas George Gregson, Esq., value £100.

The Attorney General opened the case with a clear and unvarnished statement of the facts, as he afterwards proved them in evidence -- laying some stress upon Allan’s thorough knowledge and experience of horses, and the consequent improbability of his mistaking a thorough-bred racer for a cart horse; and also on the improbable story of a colt bred at New Norfolk, voluntarily swimming across the other side of the Derwent, where he had never been before. He referred to the fact of the horse taken by Allan (besides his natural appearance of a racer being so different from that of a cart horse) being broken in, and having his tail cut, whereas Allans was a wild cart cold that had never been handled -- and then called Mr. Gregson whose testimony was as follows:--

I live at Risdon I have seen a horse outside the Court this morning; I have known it 15 or 16 months; when I first knew it, it was in the possession of Mr. Edward Abbott; I purchased it from Mr. Edward Abbott, for the purpose of running at the last New-town races, which were last March, and he ran at them. After the races I brought him to Risdon, and rode him for about a month, and then turned him into the bush on my own land. I had frequently seen him after he was turned out until the latter end of May; after that I lost sight of him for several months, and caused search to be made for him, but he could not be found. I next saw him in the middle of December in Collin’s-street, in the possession of the prisoner; he was riding. Mr. Rawlings called to him at my suggestion; I said, “that is my horse, Jagha Jagha.” Allen stopped, I had no conversation with him then. Mr. Rawling put a question to him -- he said, “Allen that is a nice colt you have got.” Allen replied, “yes, he is very nice colt,” and said it was out of one-eyed mare of his, but he did not know what horse it was got by, but that it was a chance horse in the bush. His manner at the time struck me as rather remarkable; I think Allen said to Mr. Rawling, “I will sell you the horse.” At this time the horse had every appearance of being broken in. He had on a second bit, and from the man’s seat upon him, he had every appearance of being in course of being broken in -- but the horse walked as quietly as an old horse. I saw no more of him on that day -- he rode off; I next saw the horse about 8 or 9 days after in Macquarie-street; I came to town on that day to have Allen apprehended; I saw a horse in Macquarie-street, in the possession of Mr. Hedger; it was the same horse that I had seen in the possession of Allen. Upon that occasion I took possession of the horse; that is the same horse the Jury have looked at outside the Court to-day. The horse has the character of a racer; his color was of a brown bay. Before I lost him he had two or three white saddle marks on his back; he had an injury on his left hock, and a mark on his off thigh, of a peculiar description. The orifice also where had had been bled was very large; I did not pin it up as is usual; but put a piece of brown paper over it. Mr. Wilson suggested to me not to pin it; its tail also was square docked, it was about six weeks before I lost it. The horse was remarkably quiet. When in training, he had a cut on his left hock, that I observed also before I lost him. When I saw him in Allen’s possession, I perceived the cut. I did not observe the mark where he had been bled at either time when with Allen or Hedger; I examined him when I saw him with Hedger, but not so carefully as I have done since, for I knew the horse. I have examined since more carefully; there is the mark on the hock; the saddle and roller marks on the side occasioned by the buckles, and the hair of the tail has the same remarkable appearance. All those marks are there and are now to be seen. I have been accustomed to horses about 25 years; I consider myself a good judge of horses. At the time I saw him with Allen he was quiet as steady as an old horse.

Cross-examined by Mr. Rowlands. -- I have caused the horse to be advertised -- that is the advertisement; I requested Mr. Abbott to advertise him; that is Mr. Abbott’s description; I told him that the horse had been stolen. Hugh Drum, my overseer, I sent to enquire at the pound; Harry, who has charge of my horse, I sent repeatedly; I think Allen said to Mr. Rawling, you shall have the horse for £30; I value the horse at £100; I gave sixty guineas for him; I have no recollection of Allen saying where the horse could be seen; I do not remember any further conversation -- I was engaged examining the horse; I have had the prisoner at the police-office on two different occasions, on his charge. I do not know whether I stated, on those occasions, that I came to town on purpose to have Allen apprehended; the horse since Christmas Day, has been at Risdon; his appearance now is better than when I received him from Hedger; he is not looking so well as I should have expected, since he has been in my custody; I did not mentioned the buckle marks at the police-office; I charged the prisoner before Mr. Champ, at the police-office, on the 14th December -- the case was dismissed, but not in my presence. I made a second charge before Mr. Lascelles, at Kangaroo Point; I had no conversation with Mr. Lascelles at my house, at all prejudicial to the prisoner; the charge was investigated at the police-office, at Richmond. After the case was dismissed, at Hobart Town, I received a summons from Allan, signed by Mr. Rowlands, as attorney for him, threatening an action against me -- this was before I commenced the second proceedings. I did not think he was serious - I thought it was a trick to deter me from proceeding farther with the prosecution. I know a person named Smith, who resides at the Old Beach; he takes in horses to pasture; I asked him at his house, after the first examination, if he had any horses of Allen’s, running there; did not tell Smith that a horse named Rover was mine; I reside about four mines from Mr. Gage’s.

Re-examined by the Attorney-General. -- I reside about four miles from Mr. Gage’s, on the other side of the Derwent. I swore distinctly, without going into particulars, the horse was mine, when I saw him in the possession of Hedger; I made a deposition before Mr. Champ; Hedger got possession of the horse after the first examination; I saw him with it on the evening of that day; I applied to Mr. Champ the following morning for a warrant to take the horse, which was refused; and I then applied to Mr. Lascelles, at Kangaroo Point.

Mr. W. Kearney examined. -- I reside in the district of Richmond; and have been accustomed to horses about twenty-five years; I know the horse outside the Court-house; the horse is Mr. Gregson’s; I have known it to be Mr. Gregson’s since last March races; he ran at New Town in the trial stakes the first day, with five or six others; one was mine; I am quite certain this is the same horse; the next time I saw him was about a month since in Macquarie-street, coming from the Old Wharf, and at the distance of a hundred yards I recognised it to be Mr. Gregson’s horse Jagha Jagha; Mr. Hedger was riding it; I think the horse is thorough-bred; he is decidedly not a cart-horse nor has he the least appearance of being got by a cart horse, or from a cart mare; I remember having a conversation with Allen on the Friday before the case was heard at the Police-office, in Collins-street; Allen asked me if I knew Jagha Jagha; I said yes; he asked me the last time I had seen it; I said it was the last time I was in town that Mr. Hedger was riding it; Allen said you might be mistaken, and he said that he got the horse’s dock, and was going to take it to the Police-office.

Mr. Peever, Mr. Wilson, Mr. Athorne, Mr Eddington, Mr. Abbott, who bred the horse, Mr. Sharpe, at Sandy Bay, who has been judge at New Town races ever since their establishment, all swore most positively as to the identity of the horse as Mr. Gregson’s horse Jagha Jagha -- that he was thorough-bred to appearance -- and had not any resemblance to a cart horse. All the witnesses also spoke to Allen’s experience amongst horses. True they said that they never knew any thing against his honesty.

John Ogle Gage, J. P. examined. -- I reside at the Old Beach, and know the prisoner. I recollect him coming to my residence on a Sunday; I do not recollect the day of the month, but it was the day previous to the cattle shew at Richmond -- he came to me about a stray horse that I had in my paddock; I had advertised this stray horse before that time; he gave ma a verbal description of a horse that he had lost, and said it was a cart bred bay horse, black points, with a star in the forehead, and that it was got by a Sydney cart horse. I told him it did not answer the description of the one in paddock, for that was a blood horse, but that I would shew it to him; in going he pointed it out to me,* and said that was it, but he would not take it upon his own responsibility, but would go to New Norfolk, to a man of the name of Jarvis, and bring him, for he would know whether the horse was his or not. I do not know Jarvis, New Norfolk is on the opposite side of the Derwent to where I reside. The horse was in my paddock about four months. I live on the same side of the Derwent as Mr. Gregson.

John paid examined. -- In May last I was in the service of Mr. I. O. Gage, at the Old Beach. One afternoon, about the beginning of June, I remember seeing a stray horse on my master’s farm -- it was a bay one; I don’t know exactly how long it was there. I have seen the prisoner on our premises; it was on a Sunday he came concerning the horse. It was on Monday or Tuesday when he came again, with a man of the name of Jarvis, of New Norfolk; my master was not at home. They asked me if there was not a stray horse in the paddock, and enquired for my master; they said they had come for it; and asked me to help them catch it; they told me they had seen the horse, and I went with them to that paddock. In going, Allen said he did not know the horse himself,* but that Jarvis did. When we got near to the horse, Jarvis said that is the colt, and pointed to it, and said he could swear to it out of a thousand; we drove it up to the corner of the paddock, with a quiet mare of Mr. Gage’s -- Jarvis put the halter over his head, and the horse remained quite still. I said he seems a good bred horse. Allen said he was no great things of a breed, that his sire was a rough Sydney horse. When I said what makes his tail be cut like a racer, Allen and Jarvis said that it had been cut by the road-party. I said what did they do that for; they said they did not know -- that it could only be to make fishing lines. Jarvis left to go to New Norfolk, when I said to Allen that if the colt was got by a rough Sydney horse, that it must be out of a good mare; Allen said yes it was; he said the horse would give him some trouble; I said, no he will not, for he appears to be broken in.

George Davis examined. -- I have seen a horse outside the Court; I first saw him in the early part of November last with the prisoner; I had a conversation with him; he rose up to me, and asked what I thought of the horse that he had just broke in; I said at the time it looks more like a racer than a cart colt; I asked him how his tail came to be cut in that way; when he said it had been cut to make fishing lines by the road party; he said at the time he had no trouble with the colt, as I had with mine, for it was already broken in for him; I had a conversation about fifteen or eighteen months ago, respecting the colt that he had running at Jarvis’s. He said it was one of such an inferior description, with a large head, that he should know it amongst a thousand.

Other two witnesses were examined, but nothing of importance was elicited from them. Thomas A. Lascelles, Esq. J. P., was next examined -- He said, I know the prisoner at the bar; he was charged before me at Richmond for horse stealing, by Mr. Gregson, on the 6th January; this is the deposition, signed by myself, Mr. Breton, Mr. C. Hector, and Mr. G. W. Gunning, and were all present during the examination of the prisoner.

Cross-examined by Mr. Rowlands. -- This examination was taken at Richmond; I have taken other examinations of this charge elsewhere; the prisoner tendered at Richmond, the evidence of a man named Jarvis, which was refused; upon the first examination at Richmond; the prisoner refused to make any statement; the Magistrate gave the prisoner a week to produce his witnesses; on Saturday following the prisoner appeared with his evidence; he made a statement on the second examination, and on that occasion examined the witness a second witness named Jarvis was refused examination by the Magistrates, on behalf of the prisoner; because I considered that he was an accessary, or in some degree implicated; I have known Allen this last twelve years; I believe the man’s general character is good.

Mr. Rowlands then addressed the Jury for the defence, and called his witnesses -- Jarvis to prove that he had gone with Allen, as sworn by Page, also as to the loss of the horse by Allen. It appeared that after seeing the horse in Allen’s possession he left him, and went home a different road.

Two boatmen, Cox and another, were called to prove that they had seen the horse swim the Derwent, from Stoney Point to Davis’s Paddock, about dusk in the evening, and that they had told what they saw to Mr. William Austin. They both swore that saw the horse in the middle of the river, about two hundred yards from either side but one of them swore that the distance which the horse swam was three miles?* They were when nearest 100 yards distant from the horse; it was getting dusk in the evening, yet these ’cute watermen saw most distinctly the colour of the horse, wet as he was! -- and could swear that he was the identical horse which then stood at the Court-house door. Why was Mr. Austin not called to prove what they told him about this phenomenon swimmer? Probably the following witness was more suitable for the defence.

Samuel Davis of Old Beach recollects a strange colt getting into his paddock the latter part of May last; it was fenced in all but the water part; the horse was a dark bay colt with star on forehead turned it out of his paddock and saw it join Mr. Gage’s horses in his paddock; had a conversation with Allen who said he understood there was a strange colt in Mr. Gage’s paddock; and wondered how he got there; witness told Allen that Mr. Austin said he had been informed by Cox that it had swam across the water; Allen asked witness to go over to Mr. Gage’s, but he did not go; next day Allen and Jarvis came and asked him to go and see if it was the same colt; witness went and said it was; the horse could not have got into witness’s paddock without he jumped three or four fences; the horse I have seen to-day is the same. Allen said it was surprising how the horse could have come on that side of the water, it must have been worried by dogs; the horse appears different to what it was in Mr. Gage’s paddock.

Cross-examined. -- In May he was in a fair condition; when witness saw him in Mr. Gage’s paddock in October he was very poor; knows Mr. Gregson’s residence; none of his land joins Mr. Gage’s; has known the river Derwent 19 years; has seen plenty of horses swim across, and bullocks too.

A great number of highly respectable witnesses were examined to give Allen a character, none of them had ever heard any thing to the prejudice of Allen’s character. It struck us as something strange that the Attorney General never asked any of these gentlemen what opportunity they had of knowing Allen. Not that we would at all insinuate that any thing to his prejudice would have been elicited by such questions. During the trial the jury frequently manifested a wish that the Court would adjourn, and Mr. Paymaster Jean told the Judge that if the trial lasted until 12 o’clock, his strength could not bear it out.* The Judge considerably adjourned the Court for a short space, to allow the Jury to take refreshment.

Soon after their return when Mr. Edward Rawlin was under examination, the Forestman addressed some words to the Judge which we could not hear. His Honor said, that by law, the Attorney General was entitled to a reply on the whole case, and wished them to hear that. However the Foreman rejoined --

We find that the horse is the property of Mr. Gregson’s, but we acquit the prisoner, and a verdict of Not Guilty was recorded.

The Chief Justice said; I cannot account for the conduct of those magistrates in not committing Jarvis, after they had refused to receive his evidence, on the ground that he was implicated in the felony; and I must tell you, gentlemen, that had your verdict been different, I should immediately have committed Jarvis to take his trial for the felony, for it appears to me that taking Jarvis there, was a mere juggle to cloak a felony. (We did not hear the last two words distinctly, but we think they were what we state.) The Attorney General said so satisfied was he of that, that he had prepared an information to put Jarvis on his trial, and we saw the information in his hand a few minutes afterwards.

We have received several letters commenting on this case, but these with our own observations we must defer for the present.