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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Maxwell

stealing, by carrier

Supreme Court of New South Wales, Port Phillip

Willis J., 26 April 1841

Source: Port Phillip Patriot, 29 April 1841

William Walter Maxwell , late of Geelong , labourer, stood indicted for larceny, in stealing a coat, four shirts, one pair of razors, &c., the property of John Cotter, on the 17 th February last. The Crown Prosecutor stated the case as follows:--- In February last the prosecutor and prisoner were hired in Melbourne to proceed to Geelong , in the service of Mr. John Gardiner Mack, and the prosecutor preferring a journey over land, gave the articles, charged in the indictment to the prisoner, (who was proceeding by water,) to take charge of until his arrival.

His Honor remarked, that unless a felonious taking and carrying away, could be proved, the case must fall to the ground, as it appeared in this case, according to the statement made by the Crown prosecutor, that the articles charged in the information, had been given into the keeping of the prisoner by the prosecutor himself, which clearly showed that there was no animus furandi , at the time the goods were taken, and the prisoner only stood in the same position as a carrier; this case, His Honor said, was widely different from that of a felonious taking, and unless the Crown Prosecutor, was prepared to prove the felonious taking, he feared the case would fall to the ground.

The Crown prosecutor said, that with great deference to His Honor, he did not consider the charge brought against the prisoner, came within the meaning of a carrier, but he would, with His Honor's permission, go into the merits of the case. On the name of the prosecutor being called over three times,

Crown Prosecutor said, ---"I regret to inform the Court, the witnesses are not in attendance."

Judge Willis---Then what is the use of occupying the time of the Court with this case?---you should have taken care to have your witnesses here; the Court was adjourned for that purpose, and you have had plenty of time to do so; gentlemen of the jury, I regret that so much of your valuable time should have been taken up in this case; for, from the statement of the Crown prosecutor, you must acquit the prisoner, and I am clearly of opinion. had the prosecutor been here today, there was no case to come before you.

Verdict, Not Guilty. Discharged.

Willis J., 26 April 1841

Source: Port Phillip Herald, 27 April 1841

Before Judge Willis and a Jury of twelve.

Walter William Maxwell, was indicted for larceny in stealing a coat, a pair of razors, red ca??, and a variety of other articles, the property of John Cotter at Geelong, on the 7 th February, which had been entrusted to him to convey to Geelong. The prisoner was, under his Honor's direction to the Jury, discharged, his Honor deciding that admitting the Crown prosecutor's opening of the case to be fully proved no animus furandi could be proved.

Published by the Division of Law, Macquarie University