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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Minnett [1836]

stealing, cattle - stealing, mens rea

Supreme Court of Van Diemen's Land

Montagu J., 18 August 1836

Source: Launceston Advertiser, 25 August 1836[1]

            Mr. Paul Minnett was charged with having "feloniously stolen, &c.," on the 13th of October last, one heifer the property of William Field.

            The prosecution was conducted by the Solicitor-General, and Mr Gellibrand appeared for the defence.

            The first witness called for the prosecution was Henry Bonney, who being sworn said, my name is Henry Bonney, I am district constable at Westbury, I know the prisoner at the bar, I went to his farm on the 23rd Nov. last, I went to search for three beasts, I found them in his paddock, I saw a cow in the paddock that had been newly branded P M, I think on the right rump, that cow is outside the Court-house here, when I got pretty nigh to her I saw another brand underneath which I took to be W F; the P M was on the rump the W F on the thigh, I had seen the cow many times at a place called Bonnily's Flat about a mile from Mr. Minnett's, I had seen it often before, it was with Field's cattle sometimes and at other times with the Company's, every time I saw it but the last it ran with Field's cattle, I have tried to impound that and other cattle but never succeeded, I have been within 10 yards of her, or less than that, three or four constables were with me when I went to Minnett's I waited there until Wm. Field, junr. came, he went and looked at the beast, I stopped with Mr. Minnett's, I remained there about 15 minutes, Mr. Minnett was in the stock yard with me, he said nothing particular at that time, Mrs. Minnett said, "what's Field riding round that cow for, surely he is not going to claim our Cordelia;" Mr. M. said nothing in particular, he heard what Mrs. M. said, the W F must have been put on the beast when a calf, the P M about six weeks, the shell the firebrand caused was not off, the cow was worth about 6 or £7.

            John Stephan sworn - I am a settler at Norfolk Plains, I was formerly overseer to Mr. Field, I left his service about 2 years ago, I was his overseer 4 ½ years ago, I was acquainted with his cattle, I have seen a cow outside the Court house this morning, I have known that cow to take notice of it 4 or 5 years, when I first knew it was branded with Mr. Field's brand, about 4 years ago it generally ran at the pennyroyal swamp with Mr. Field's cattle, it was very often impounded with other cattle and was a wild troublesome beast, I have no doubt about the cow.          

            [The witness and the jury went out and examined the cow - the jury could not distinguish the brand said to be W F]

            Examination continued - I have seen the cow I speak of in the yard, there is only one cow there, I saw the brand W F, I saw another brand higher up, it appears to be P M.

            Cross-examined - the cow is a troublesome cow and trespassed on Mr. Walker's land and got into pound frequently, there is some land between Walker's and Field's but one part of Field's land joins Walker's; Mr Field's herd were running at large on the Company's land - the Van Dieman's Land Establishment at Cressy, Mr. Walker's land I think does not join Cressy, Field's cattle would stray from the Company's land on to Reibey's and then on to Walker's. I resided on the same estate of which I speak, I am a judge of cattle, there is something remarkable in the cow, there is nothing remarkable in her colour or make, there is nothing remarkable about her except two rents by dogs in her ears, there is no remarkable natural marks, the cow was never impounded by herself that I know of, she was no more in the habit of trespassing than the others, I can tell the age of a cow up to five years old; I cannot tell whether a cow is seven or ten years old; I cannot tell this cow's age by marks on the teeth or horns; I can suppose her age from the time I have known her; I never handled that cow in my life, that I know of; I can swear she is one of Field's cows; I knew her first about four years ago. I left Field's service about two years and a half ago, and was with him four years and a half; I did not know her when I first went to Field's service; I do not recollect seeing her then; it might be two years before I noticed her particularly; I know not how she became branded W F.

            By a Juror. - I last saw the brand W F now; I was very near to the cow, within about two yards; I had frequently seen it before, within two or three yards very likely. [Captain Jean here remarked that not one of the Jury could see the brand. The Judge, Jury, Counsel, and Witness again went out to see the beast, which was thrown; after an absence of about thirty minutes they returned.]

            W. Field, junior, sworn. - My name is William Field; I recollect being at the paddock of the prisoner in November last; I there saw a cow, the same I have seen this morning; and it is my father's property; his name is William Field; I have known it about six or seven years; I know it by the overseer going to kill it nearly six years since; it then bore my father's brand W F on the thigh; I know the beast by the horns; it used to run on the Doctor's Swamp six years ago; it did not always run there; it was taken to Westbury; I saw it about four months before November last, at Brumby's Flats, about three or four miles from Minnett's. I dispose of property for my father; no one else does but my brother Thomas; I never sold that cow; it is six years since it was going to be killed.

            Cross-examined. - That is my father's property, I swear positively. I knew the beast about six years ago; she was then about twelve months old; when I first took any particular notice of her she was yearling, about twelve or eighteen months old; there was a remark made by the overseer that they would kill the stag horn heifer, that is why I remember it; I am certain he did not kill her; I was then at Pennyroyal Swamp; my father's cattle are branded sometimes on the rump and sometimes on the thigh, W F; I have not the brand here; cannot swear to the size of the brand; have known our brand put on beasts by mistake; I have had some considerable experience in stock; it frequently happens that cattle are branded by mistake; if I get in cattle, some of them two or three years old, if I think they are ours, I would brand them; never brand any but such as, I am sure are my father's property; the cattle have been removed from Pennyroyal Creek to Westbury, five or six times in the last nine years; the cow in question was removed to Westbury; I took her myself, I think four or five years ago; my father's land at Westbury is about ten miles from Minnett's; the estate of Pennyroyal Swamp is near Mr. Minnett's, divided from it by a creek; Mr. Minnett has had cattle there for the last seven or eight years; Mr. M. has not frequently complained to me that our cattle come in droves upon his land; my servants have told me so; but never that they have taken away his cattle; the cattle coming down so do sometimes join, but never go away together; this cow never was quiet; never was handled by me, unless I was present at the branding about four months before I saw her at Minnett's, I saw her at Bonnily Flats, about three miles from Minnett's; I have examined the cow; I will swear she is seven years old; I will not swear she is eight; I have not examined that cow for her age, only her brand; not her mouth nor her horns; it is impossible to tell her age after five years old; until then her age would be told by her teeth, not by her horns; I am no judge by the horns; can tell by the teeth when a beast is above five years, but not exactly what age; one of ten years would have teeth shorter than one of six years; this cow is a remarkable cow in her color, she is a dark brindle; it is not more remarkable than any other color; her color and horns together are remarkable; she is brindled; it is a remarkable color, but not more remarkable than any other color.

            Re-examined. - I observed the brands on the beast when I went to Minnett's paddock. I observed the brand W F there in November last, the brand was visible then, there was also another brand P M.

            By the Jury. - I cannot say who branded the cow, we have more than one brand but they are similar, in our brand the strokes of the W are about four inches long, I did distinguish that brand when I found the beast in prisoner's paddock, I am positive.

            Thomas Field, sworn - I have seen the cow outside, I have sometimes sold cattle, I never sold that cow I will swear.

            William Field sen., sworn - I have seen the cow outside, I know it is my property, I have known her between six and seven years, saw her last November at Westbury, I now recognize the brands upon her at that time P M and W F; W F is my brand, the beast I should think had borne the brand W F since a calf, the P M might have been branded a month or six weeks, I have known the cow full 6 years and have seen it frequently, sometimes two or three times a week, sometimes not for six months, she has what are called stag horns, she ran within the last 12 months at Bonnily's Flats.

            Cross-examined. - The cow is my property, I should say it was mine, if it had not my brand upon it, I should know it by the horns and color together, by the horns or color alone I should not know it, she is a brindled cow, not a common brindle, there are hundred brindled like her, there is nothing remarkable in the color of the cow, she has stagged horns, they are uncommon, having such horns does not depend on the breed, have seen many stagged horns of the buffalo breed years ago, that cow has marks of the improved breed in her body, she is a cross-bred cow, her horn does not exhibit proof of this country breed, by the horns she takes more after the father than the cow, her father was I should think a very ugly bull, Minnett's property joins mine, my cattle are now up the country, some hundreds run in that neighbourhood and on the same side the creek as Minnett's, some years ago some thousands run in that neighbourhood, 3 or 4 years ago, how long Mr. Minnett has been there I do not know, whether 7 or 8 years, he was living there when I had the thousands running there, he never complained to me that my cattle led away his cattle, I have heard two or three times, that he said so to my servants.

            Examination continued. - I have sold bullocks for killing, I never sold the cow of which I now speak.

            Thomas Brown, sworn - I was with Mr. Field sen. in November last, I have seen a cow in the yard here this morning, in November last she bore the brands of Field's and Minnett, I saw her at the Police-office Westbury, saw her 8 months before at Bonnily's Flats, she bore Field's brand W F when I saw her before, I saw her several times, had not then Mr. Minnett's brand, Mr. Minnett's brand was two months old or more when I saw it at Westbury, I had know the cow three years before, she was running with Minnett's cattle sometimes, it was about eight months before I saw her at Westbury.

            Cross-examined. - I saw her at Bonnily's flats running with Minnett's cattle, about two or three miles from Minnett's; I have been Field's servant going on for 5 years, I live at Westbury, not near Mr. Minnett's, have known the cow 2 or 3 years, never saw her handled by any one before I saw her at the Police-office, have seen her in a yard at Mr. Field's.

            Edward Roberts sworn - I am Mr. Field's servant, I have seen the cow outside, have known her close upon 5 years, when I first knew her she was at the Pennyroyal Swamp, she was the branded W F, Field's brand, she was then about 2 years old or something better, saw her at Westbury in November Last, I had not seen her a long time before.

            Cross-examined. - When I first knew the cow it had Field's brand on it, by it alone I knew it was his property, she was about 2 years old, Field had then a large herd near Minnett's, he had hundred, not thousands, I have known a thousand head or more running there, they fed upon the Company's land, I used to keep them together in the day, they had their run at night, I rode about round them during the day to keep them together, Mr. Minnett has not complained of Field's cattle running among his or of being driven away by Mr. Field's herds, to my knowledge.

            Benjamin Nott sworn - I was in Mr. Minnett's service in November Last, I have seen a cow outside the Court-house this morning, I saw it at Westbury Police-office last November, I first saw her at Mr. Minnett's about 5 weeks before, I saw her at the stock yard of Mr. Minnett, she was brought there by Singer, Mr. Minnett's Stock-keeper, Mr. Minnett was present, the cow was taken and roped the same day, was thrown down and examined, I had to shear off the hair with the sheep shears, I could not tell what brand it was, Mr. Minnett put on his glasses and looked at the place and said it looked more like  P M than anything else, he ordered the overseer to brand it and the overseer branded it, it was then let go in the paddock, it got out of the paddock into another, was brought back again and roped up to a post all day long, it was then let go again, and remained in the paddock until taken away by Bonney about 5 years after as near as I can guess.

            Cross-examined - I was an assigned servant to Mr. Minnett, had been so for 2½ years, I saw the cow brought into the yard, Singer brought her in, no one else, Mr. Minnett was in his own house then, Freeman the overseer, Mr. Minnett's son, and there might be more persons were there but I did not take notice, after the beast was in the yard Mr. Minnett's son went to the house and Mrs. Minnett and Mrs. Hines came to the yard, I do not recollect seeing Mrs. Hines's son there, Mrs. Hines said she believed it was Young Cordelia the calf of a cow with three legs named Old Cordelia, I knew Old Cordelia, she was a brindled sided cow, white streak along the back and star in forehead, she was a very quiet cow, youcould [sic] go up to her anywhere, I believe she was always very quiet, the cow was thrown, I cut the hair to examine what brand was by Mr. Minnett's directions, after the hair was taken off, I know nothing of Young Cordelia, never saw her in my life, after the hair was cut Mrs. Hines said to Mr. Minnett she thought it was Young Cordelia, and asked him to look at it, one child was present at that time, I cannot say the other was, Mrs. Hines was outside the yard, could see the cow but not what brand it was, I do not think the little boy said anything about the cow, nor yet Freeman, Mrs. Hines did not ask me to cut the hair shorter, she never did in my hearing, it was branded about 11 or 12 o'clock in the day, in the stock-yard, the beast was then put in a paddock about a quarter of a mile from Mr. Field's ground, the nearest constable is nine miles off (Bonney's), after this I made communication to one of the other constables, did not go with Bonney when the warrant was executed, when I left Mr. Minnett's the cow was in the paddock, Mr. Minnett had not threatened to punish me, or take me to Mr. Walker, it was on the 20th November that I went to the constable, Mr. Minnett had not threatened me a day or two before to take me to Mr. Walker, the constable was stationed about two miles from Mr. Minnett's, had been about four or five days stationed at a pound about two or three miles off, I went round there for my bullocks on the 20th November or on the 23rd, I was taken to Westbury.

            Francis Craxford sworn. - I was in Mr. Minnett's service last September, have seen the cow outside today; saw her at the Police-office Westbury in November last, and in the bush about 6 weeks before, I was then looking for a milking cow that I had lost out of my master's paddock, I found the cow and the cow now outside with it, this was on the Sunday, lost them again before reaching home, no communication with Mr. Minnett, the same evening went again after the cow, did not find it, I saw her branded, there was some brand on before but I could not make it our, it was branded about a fortnight after Singer brought it in, during that time it was kept in the paddock, I saw Singer drive the cow into the paddock in the first instance, I saw it since in the paddock, as near as I can guess about a fortnight after.

            Cross-examined. - I was present when the beast was branded, S. Freeman, B. Nott, Singer, and myself, and Mrs. Hines were present, Mrs. Hines was not in the yard, she was asked to look at the beast through the fence, they thought it was their cow which had been lost in the bush, Mr. Minnett was present, Mrs. M. said to Mr. M. that she thought it was their lost cow and then sent for Mrs. Hines, we then put the cow in the yard, Mr. and Mrs. Minnett were there, I saw young Minnett when he was first there, when we were examining the cow I can't say that he was there, Mrs. Hines came but don't know who sent for her, Mrs. Hines's son was there and Mr. Minnett's youngest son, when Mrs. H. came to the yard the cow was thrown down, Mrs. Minnett said it was their Cordelia, Mrs. H. said it was very much like her the two children both said it was very much like her, can't say whether they said it was "their Cordelia," the moment they saw it they both of them said "it is Young Cordelia;" Benjamin Nott cut off the hair by Mr. Minnett's orders, to see what brand was on it, after the hair was taken off they said they did not know what brand it was, but it was very much like P M, don't recollect Mrs. Hines's saying cut the hair very short, did not know Young Cordelia, had before heard that Young Cordelia was missing.

            Samuel Freeman sworn. - I am a labourer, in Nov. last was in the service of Mr. Minnett, have seen the cow outside the Court-house to day, saw it at Westbury in November last, saw it before the latter end of October last, it was brought into Mr. Minnett's yard by Singer the stock-keeper and remained in the yard for 2 days, and then I was ordered to get her up and milk her, she got away from me, there was some brand on her then but I could not tell what, she broke away into the paddock, I got her into the yard from the paddock, Mr. Minnett asked me what brand she had, I could not tell, he asked all his men and they said the same, he then said she should be branded with his brand, the hair was cut off by a pair of shears to see the brand, could not make the brand out, Mr. Minnett told me to brand her above the hip and I did so.

            Cross-examined - I had lived with Mr. Minnett 3 months, know a lady called Mrs. Hines, she was present at the yard, also Master Minnett, Mr. Minnett's grandson and Mrs. Minnett were there, he asked all the men what brand it was, none could make it out, Mrs. Minnett and Mrs. Hines said they thought it was theirCordelia, I think young Minnett was there and also young Hines, they both said when we had the beast on the ground and were branding her that it was Young Cordelia, I was Overseer, had not heard they had a young cow missing, no one there could make out the brand, I asked everyone of them.

            This closed the case for the prosecution.

            Benjamin Nott recalled and examined by the Judge. - When I saw the cow branded Singer brought her into the yard, I cannot say that any other person helped him, I and Freeman were there, I never saw her in the paddock before, I cannot think she could be there without my knowledge.

            Examined by Solicitor-General - When the cow was first driven into the paddock I was standing at the gate, she was driven directly into the yard but not branded then, she then got away, it was the next day after that she was branded.

            Mr. Minnett then read address to the Jury, after which Mr. GELLIBRAND called for the defence.

            Thos. Reibey, Esquire, who said I am a magistrate of the colony, residing within 9 miles of Mr. Minnett; I have known him 8 or 9 years; he has during that time had the character of being a man of the highest honor and integrity.

P. A. Mulgrave, Esq. - I was for years Police Magistrate on this and the other side the Island; I have known Mr. Minnett 8 or 9 years; during that time I have heard of, and known my own knowledge, his reputation to have been the highest for honor and integrity.

            W. G. Walker Esq. - I am a magistrate of the colony; I reside within two miles of Mr. Minnett; I have known him I have always believed him a man of the strictest honor and integrity; had it been otherwise I must have known it.

            G. B. Skardon, Esq, Liet. R. N. - I am a justice of the peace and reside within 5 miles of Mr. Minnett; I have known him about 6 or 7 years; I have always known him to be very honest, industrious, upright gentlemanly man; I am positive that is his general reputation.

            W. E. Lawrence, Esq. - I reside in Launceston; have known Mr. Minnett 8 or 9 years; can speak of his general reputation being that of a gentleman of the strictest probity - incapable of an act of dishonesty.

            Rev. R. R. Davis. - I am the clergyman at Norfolk Plains; Mr. Minnett lives in my district; I have known him for the last 6 years, I believe him to have borne the general reputation of an honest honorable man.

            Rev. W. H. Browne, L.L.D. - I am clergyman in Launceston, have known Mr. Minnett about 7 years; some of the family intimately; his general reputation is certainly that of a man of honor, honesty and integrity.

            W. H. Gough, Esq. - I reside near Launceston; I have known Mr. Minnett 10 years; I knew him before he came to this side the Island; to my knowledge he has always been reputed a man strictly honest and honorable.

            Mrs. Hines - My name is Sarah Hines, I have lived with my father (Mr. Minnett) these last 8 years, I am one of his daughters, I have a son also residing with me, I recollect an old cow called Cordelia, she is dead, she was remarkable, she had but three legs, one had been cut off, she was mime, was given me when a calf, I know she had a calf some years ago, say nearly six years ago, my father makes an entry in his journal respecting the cattle, I have frequently seen that book, I am sure the birth of the calf in question is in that book, I saw the entry a day or two after it was made, we called it Cordelia's heifer always afterwards, it was a brindled heifer with a white tail and short horns, I saw that heifer on my father's estate until she was about 3 years of age, about that time father lost her with some of his cattle, I saw that heifer again last summer, when she was brought home in October last, I saw her in the paddock  where the house is, I saw her afterwards at Westbury; I saw her also in the stock-yard; Freeman, Nott, and I think two others, and Craxford, my brother, and my son were there; my mother was there also; the cow was thrown and tied with a rope; I recognised her as Cordelia's heifer; I have seen the heifer in the Court-yard today; it is the one I there saw; I believe it to be Cordelia's heifer; I have no doubt about it; the mother of Cordelia was very wild and was kept in the paddock by the house; the heifer was wild too; whenever I went near the cow, the heifer would run away, the mother and calf were both wild. [Mr. Minnett's journal produced.] This is my father's book; "Cordelia, 2nd Sept. 1830," means that Cordelia then had a calf, it is the calf now here.

            Cross-examined. - It would be six years old next month; it was nearly twelve months ago that I recognised her; it would then be five years old; it was two or three years before that I had seen it; when it was first driven into the yard, I recognised it directly; I had no doubt about it; I saw it about a week after at the house stock-yard; it was branded then; I was in the house when it was branded; I never saw it branded; I saw it about five minutes after it had left the stock-yard; I went to see whether it was branded; Freeman, Nott, and Craxford were in the yard, my mother was with me; my brother and son also; Mr. Minnett was not there; my mother sent for me to see what brand was on the heifer; I looked at it but I could not make out any brand; I did not go into the yard; I saw Mr. Minnett a short time before, I think about the house; I do not know by whose directions the hair was cut off when I went up.

            David Fletcher Minnett, sworn; I live at my father's; I recollect Old Cordelia; I am now 12 years old; she was a brindle cow; she had horns rather long and wide; she once broke her leg and afterwards had only three legs; I know a heifer calf of her's; it was called Young Cordelia after the old cow died; she used to feed about the end of the paddock; she ran with her mother till she was a good size; I missed Young Cordelia about 3 years ago; I used to see her about two or three times a week; never saw her again till she came to the paddock; Frank my nephew, and I went down and saw her and then went up to the house and said that Young Cordelia had come back with another cow; I told my mother so; have seen the cow here this morning; she is the same I and Frank saw in the paddock; I believe she is Young Cordelia because she is the very image of her mother, and having seen her so often; she is very like Cordelia t[sic] I have no doubt she is Young Cordelia.

            Cross-examined - My nephew saw the cow first; it was three years since I saw it before; my nephew is younger than me, he is 10 years old; I was nearly 9 years old then and he was 7; I am sure it is the same.

            Examination resumed - My nephew knows the cattle better than I do.

            Francis Hines sworn - I live with my mother at my grandfather's; I recollect an old cow called Cordelia; she was a brindled cow; she broke her leg when a man was going to milk her; the leg was cut off; I saw her after it was cut off; I recollect she had a calf, a brindled heifer calf; Old Cordelia is dead; the calf was called Young Cordelia, after her mother; Old Cordelia fed in a paddock by the house; she was a wild little creature always; I remember when she was missing; I have seen Young Cordelia since; to day in that yard; I know it is Young Cordelia, I am sure of it; I saw her brought into the paddock; I saw here there and said she was Young Cordelia; I feel quite sure the cow I saw to day is Young Cordelia.

            Cross-examined - I do not remember what month it was; it was not very far from 12 months ago; it was about 3 years before I saw Young Cordelia; I was nearly 6 years old when the cow was first missing; my uncle was with me when I saw the heifer when she came back.

            G. Robson, Esq., sworn - I am well acquainted with stock; have been for many years; have examined the cow in the yard; by her teeth and horns, I should say she was now 5 off, and an early calf.

            Cross-examined - I have examined her month; should decidedly say she is not six; - By the Court - At the age of three cattle put a ring round the horn, she has not two yet; by the hollow also above the eye I would be very sure she is not six, but approaching to it; her teeth are a good length now; by the length of her teeth she is five years old; the centre tooth of a cow is marked in the same manner as a horse; one year makes not much difference on the teeth; I should say it it [sic] is hardly credible, judging by her teeth, she can be 7 years old; as age progresses the cavity over the eye increases; I would say from the cavity the cow is 5 or better; she cannot be 10, nor 8; I swear that I believe she is not 6.

            This closed the case for the defence.

            The Judge in summing up remarked to the Jury that the only question was whether they believed that Mr. Minnett at the time he branded the beast had any doubt of its being his; if so, and that he thought it belonged to any other person they must find him guilty. But if they thought he had no such doubt, and that consequently he branded it believing it to be his own, there could have been no felonious intent, and of course he would have their acquittal. His Honor concluded by remarking that he thought he need not say one word on the evidence; and that he should best discharge his duty by leaving the case in their hands. Verdict - NOT GUILTY.

            Mr. Justice MONTAGU then addressed Mr. Minnett in a very feeling manner; stating as his conviction that the charge was utterly groundless, and that, in his opinion, not the slightest stigma should attach to his character in consequence of his having been brought into that Court; and he was then discharged.

Notes

[1]              This report was preceded in the Launceston Advertiser, 25 August 1836, by the following:

                "Mr. Justice Montagu, it luckily happened, was in a tranquil judicial humour on Thursday last, and acquitted himself on the occasion with credit and ability.  He assured Mr. Minnett that he left the Court without the slightest stain upon his character arising out of the proceedings therein instituted against him."

                See also Cornwall Chronicle, 27 August 1836, noting that the court was very crowded during the trial, and that the verdict was greeted by the stamping of feet and congratulations.

 

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania