[stealing, sheep – sentencing discretion]

R. v. Pitfield

Supreme Court of Van Diemen’s Land

Montagu J., 29 April 1840

Source: Tasmanian, 8 May 1840[1]

            James Pitfield stood charged with stealing five sheep, the property of George Mercer, Esq., of Oatlands, on the 17th of April last; he was defended by Messrs. Stephen and Stewart.

            [This case, from circumstances which we shall presently explain, excited very considerable interest; we shall therefore avail ourselves, rather fully, of our Reporter’s notes.]

J. Anderson. - Is overseer to Mr. Mercer, and has charge of from 4000 to 5000 sheep; about the 17th of April he missed about 500, and on going to Jerusalem to search for them, he discovered several in a flock belonging to Mr. Lamb; the prisoner was present at the time; witness examined them. [Five sheep were now brought into Court, and identified by Mr. Anderson, as the property of Mr. Mercer; they were also handed round to the Jury, in order that their marks &c. might be inspected.] Witness had some conversation with the prisoner, as to a young ram, when the prisoner said it was his property; this ram was one of the sheep just brought into Court; prisoner asserted he could show its mother, and said, it was of the Southdown breed; witness, who had had much experience as to sheep said, it was not Southdown, but bred between a Leicester ewe and a Saxon ram; there were several sheep of this description in Mr. Mercer’s flock; witness had no doubt but that the young ram was his master’s property; witness knew it by a fire mark, and a private mark made by gunpowder under the tail, when very young; when witness found the sheep, they were pitch-branded with a figure of S; this was Pitfield’s brand.

Cross-examined by Mr. Stewart. - All Mr. Mercer’s sheep ran in the same neighbourhood with Pitfield’s; does not know how many sheep Pitfield may have had; the sheep of both flocks were in the habit of mixing together; does not know whether the prisoner has any shepherd of not; witness picked out thirteen sheep at the Pound, and told Pitfield that if any belonged to him, he might have them; having some doubts, as to the sheep, he left them for inspection, and afterwards selected the five now produced; knows of none of Pitfield’s sheep being marked by Mr. Mercer’s men; witness has four shepherds under him; finds no attempt to obliterate the marks on the sheep; some of the sheep might not have the private mark under the tail, the ram-lamb had; did not see the mother of the lamb; Pitfield’s sheep are chiefly of the Saxon breed, but there are several sorts; does not know where the flock was driven from.

Another witness, named West, a shepherd, testified that the ram-lamb had a long tail before it was cut!

Barnard Fox examined. - Lives at Jerusalem, knew the prisoner, and recollects seeing him in Mr. Lamb’s company at the Hollow Tree Bottom; went there to get some sheep; saw Pitfield and a man named Prior; took some sheep from Pitfield’s flock, - 108. The Prisoner drove them part of the way, and witness the remainder, and into the Pound at Jerusalem, in company with Mr. Lamb; did not know the sheep before.

Cross-examined by Mr. Stewart. - About 300 sheep were driven in, from which 108 were selected; did not see where they were running; knew nothing of his brand; the sheep were picked out one by one, indiscriminately, by Pitfield and Prior.

Jonas Prior examined. - Is a labourer, and lives at the Hollow Tree Bottom; recollects seeing the prisoner about six weeks ago with Mr. Lamb, and helped to select 107 sheep; the ram-lamb was one of those selected; the prisoner said, if it was kept till it was two years old, it would be worth £6; it was of the pure South Down breed; does not recollect whether the mark 8 was on or not.

By His Honor. - Witness picked out the sheep pointed out by the prisoner.

Cross-examined by Mr. Sydney Stephen. - Mr. Lamb did not point out any, the prisoner pointing out all. There is an inspector of stock at Jerusalem; he was not there at that time, but was some time afterwards; Pitfield has a P fire-branded on the nose of some of his sheep, with also a pitch mark 8.

Mr. John Lamb examined. - Lives at Jerusalem, and keep an inn; knows the prisoner at the bar, and recollects going to his sheep run, with Barnard Fox and Jonas Prior, and getting 107 sheep; this was on the 31st March last, they were driven to the Pound at Jerusalem, and remained there till the next morning, when they were removed to a paddock belonging to witness, the inspector not being at home; on the 10th of April they were inspected; witness paid 17s. each, being the full price. [Mr. Lamb here identified one of the 5 sheep (a ewe) as one marked by him, J L, at the Pound, on inspection.] The whole of the 107 were marked in the same way; four of the sheep, now produced, were not in the lot, which witness purchased of Pitfield; saw some of the other sheep in his (witness’s) yard, about the 10th April; they were driven in by Mr. Burberry and a constable; witness had not noticed them in the pound; recollects Pitfield saying, when he bought the 107 sheep, that one, a tup-lamb, was worth £3.

By His Honor. - Witness branded the 107 sheep himself, in the pound, but was not quite sure that all were marked by him.

Cross-examined by Mr. Stewart. - Witness did not intentionally omit to brand any; it was performed in the presence of the inspector of stock, in whose books witness has since seen his sheep registered, with his brand, and the other marks; Mr. Charles Salisbury acted as inspector of stock; does not know whether the inspector’s duty is to enter the particulars of every sale; witness looked at the sheep, when they were driven from the run by Pitfield, and observed a P fire-branded on the greater part, but some of the lambs were not so marked; had seen a brand, like a P, on one of the sheep, now produced. [The sheep was here brought in by Burberry, and the mark pointed out to the Jury.] Pitfield lives six or seven miles from witness; does not know how many sheep he possesses; there were about 350, when witness went to purchase, but they were not all got in.

Re-examined by the Attorney-General. - All the 107 sheep had not the mark P, but about three parts, perhaps, had; the one on which witness put the J L had; the P appeared as not a very old mark; 22 of the lambs had no mark - the others had; witness had no particular conversation with Pitfield, as to the absence of a brand on some of the sheep.

By His Honor. - The sheep were ear-marked in the pound by Pitfield himself, with a slot in one ear; some were so marked, when witness bought them; Pitfield came to Jerusalem the same night, and said he would ear-mark them, in case they should join his flock; he did so, the following morning, while they were in the pound, and witness went with him.

Thomas Burberry examined. - Is District Constable at Oatlands, and produces five sheep from the flock of Mr. Lamb; three were selected from a lot in the pound, and two from a “mob” in the bush; the “mob” was brought from the bush by Mr. Lamb’s son; Mr. Lamb was present when they were brought in; from the “mob” witness selected the ram-lamb and a two-tooth ewe. (The several sheep were here identified.) There were about 224 sheep in the flock from the bush; this was on the 21st of April; Anderson was present when witness selected the sheep; Pitfield said the sheep were his property, and that he was taking them to Jerusalem; the rest of the 224 were taken to Mr. Lamb’s yard, having been sold by Pitfield to Mr. Lamb; witness went with Mr. Lamb to the pound, and selected the three sheep now in Court; the prisoner said, the sheep were branded with his marks.

Mr. Burberry, in his cross-examination by Mr. Stephen, made no variation in his testimony.

Mr. Lamb re-called by the Attorney-General. He had farther dealings with Pitfield on the 13th of April, when he was at his house, and purchased 69 sheep; on the 18th he agreed to buy the residue of his flock, being more or less; this was before Pitfield was in custody; the sheep were to be delivered the next day at Jerusalem; witness paid the full price for the lot.

A considerable time was now occupied in scrutinizing the marks and brands on the sheep produced, the Court evincing the most praiseworthy anxiety to investigate the case to the fullest extend; at the termination of which Mr. Stewart submitted, that there was no evidence to show that three of the sheep, at least, had ever been in the possession of the prisoner.

His Honor. - That is a fact for the Jury to determine.

Mr. Stewart briefly addressed the Jury, and contended, that in order to convict the prisoner, they must not only be satisfied, that the property alleged to have been stolen, had been actually in the possession of the prisoner, but that it had also been so possessed with a felonious intention. What evidence was there, of this latter fact? Supposing the sheep to be the property of Mr. Mercer, might they not have come innocently into the prisoner’s possession? The respective flocks ran on adjoining land, and Mr. Mercer’s flocks were large, between 5000 and 6000 in number; the prisoner is no shepherd himself, neither does he employ one; and there is no direct evidence, that, in selecting the sheep for sale to Mr. Lamb, he used any particular caution.

His Honor. -I beg pardon. There is direct evidence of selection, by pointing out the sheep.

Mr. Stewart, in continuation, waived this point, and proceeded to animadvert upon the slightest evidence respecting the private marks so particularly referred to; and, in favour of the prisoner, the learned counsel adduced the circumstance of no attempt having been made to obliterate such marks.

His Honor, in summing up, referred to the last observation of the prisoner’s counsel respecting the obliteration of the marks. The very circumstance of not attempting to obliterate these marks was, in His Honor’s opinion, conclusive evidence against the prisoner. “My opinion,” said His Honor, “I say my opinion is, that stealers do not obliterate or alter marks, because their existence might tend to show that no felonious intent was contemplated.” After a few very pertinent remarks, His Honor left the case to the Jury; who found the prisoner Guilty.

His Honor fully concurred in the verdict, and remarked that he was glad the prisoner was convicted, as he was a most notorious offender, having but very recently been in jail, on suspicion, for the same offence. He should sentence him to transportation for life, and recommend him to be sent to Port Arthur.

[We have stated, at the commencement of this report, that the trial had excited considerable interest. It appears, that, in accordance with the appetite for personal defamation, which is so prevalent amongst us, a highly respectable settler had, by report, been implicated in the transaction for which Pitfield was, very justly, convicted. We allude to Mr. John Lamb, whose evidence as above reported, most completely exonerates him from any participation whatever in the offence. Mr. Lamb paid the outside price for the sheep, which were publicly inspected and duly registered. We should not, perhaps, have deemed it necessary to make these remarks, had Mr. Lamb been on the spot to refute them; but, we are quite sure that our report of the trial will completely prove the falsity of the rumour.] - Colonial Times