[stealing in dwelling house, meaning of “dwelling house” – convict escape]

R. v. Rogerson and Horrocks

R. v. Bushel and others

Supreme Court of Van Diemen’s Land

Pedder C.J., 7 January 1840

Source: Launceston Advertiser, 9 January 1840[1]

            John Rogerson and Nathan Horrocks were charged with stealing in the dwelling-house of William Francis Wright and putting him in fear.  The house turned out to be merely a temporary hut from which Mr. Wright intended shortly to remove.  His Honor directed the jury that it was not a sufficient dwelling-house in the eye of the law, and the prisoners were convicted of the larceny only.

Pedder C.J., 8 January 1840

Source: Cornwall Chronicle, 11 January 1840[2]

            John Bushel, John Butters, James Bains and Martin Birmingham, were again indicted for carrying arms, they being at the time of absconding transported offenders. This trial afforded another striking proof of the wisdom of our law-givers; whose sole aim it appears to be, to make laws, one session, for the purpose of amending - that is, cobbling them the next; they patch and mend, and mend and patch, until scarcely anything remains of the original, and then, lo and behalf, “the last state of the Act is worse than the first.” Here in the present instance, was the time of the Court occupied for two hours, about what might have been proved in the space of ten minutes, but for the bungling absurdity of our law-makers in attempting to give an air of legal pomp to their sapient “Acts of Council.” The learned Judge remarked to the Jury that these men were to be tried under “an Act,” passed to amend (another Colonial term for making worse) a former one, but still they would observe that there was a “resemblance!” - yes, truly! a family likeness, quite sufficient to identify it as a “Colonial” manufacture. Whatever it be, however, these men were found guilty under it, and removed to await their sentence.

John Rogerson and Nathanial Hollicks were next indicted in the same manner and for the same offence; their crime, however, having been committed previous to the new act coming into operation, they were acquitted; it being utterly impossible to prove any bushrangers guilty under the terms of the old Act, which makes it incumbent on the Crown to prove, that at the very time the culprit was in the bush, he was actually suffering coercion and punishment as a transported offender! The new Act, as it is called, has just cleared this difficulty, and that it all that can be said for it.

Pedder C.J. and Montagu J., 15 February 1840

Source: Tasmanian, 21 February 1840

            The Court opened this day, with both Judges upon the Bench, when it was supposed that five prisoners, tried at Launceston, would be sentenced, with Manning and one or two others tried here; but an objection having been taken to the conviction of the prisoners, especially those who were indicted for being illegally at large, being transported offenders, and with arms in their possession, their Honors decided that the objection was fatal; but as the Attorney General had other charges to bring against the accused, they were remanded.