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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Donahoo, Costello and Costello [1841]

stealing - receiving stolen goods

Supreme Court of Van Diemen's Land

Montagu J., 26 April 1841

Source: The Hobart Town Courier and Van Diemen's Land Gazette, 27 April 1841[1]

            Timothy Donahoo was indicted for stealing a variety of costly articles from the warehouse of Mr. Watchorn, and James Costello and Margaret his wife were charged with feloniously receiving the same knowing them to have been stolen.

            The Attorney-General conducted the prosecution; Mr. Stephen defended the Costellos, and Mr. Stewart appeared for Donahoo.

            Mr. Watchorn had known Donahoo for some time; he had been in his employ for upwards of two years, as drapery porter, and assisted the warehousemen; the articles, consisting of satin shawls, silk frocks, pelerines, handkerchiefs, &c., were here produced, and identified by Mr. Watchorn as being his property. The articles now produced were never disposed of by witness, nor by any of his men; of the shawl there was only one of the same pattern in the shop; there were six altogether; when witness went to Costello's house Costello said, "My wife says she bought the things at your shop," or words to that effect; no threat or inducement was held out to the prisoner at the time; witness alluded to two boxes full of articles, including these now produced; they were taken from a box in the inner bedroom.

            Mr. Stephen objected to evidence of any articles which were not in the information, but his Honor overruled the objection, observing that they could not be convicted of such articles, nor tried again for them, but the evidence was admissible as a connecting link.

            Cross-examined by Mr. Stewart. - He could not tell when he missed the shawls; he saw a tassel of one lying on the floor, and enquired for the box which consisted the shawls, but it could not be found; there were twelve persons in the shop, four in the warehouse, and about twenty in the establishment altogether; no other person but the prisoner was allowed to go to the warehouse without orders; the door was generally shut.

            Cross-examined by Mr. Stephen. - Mrs. Costello often came to the shop, on the grocery side; did not recollect a quarrel between Mrs. Costello and a boy, when the word "extortion" was used, nor finding it necessary to take Mrs. Costello into an adjoining room on one occasion.

            By the Attorney-General. - Almost everything witness saw at Donahoo's house had been stolen from his shop.

            Thomas Burgess, warehouseman to Mr. Watchorn, stated, that he had never sold a shawl, boots, or a child's frock to Donahoo, nor to any one else; left the warehouse only to go to his meals when it was locked; when an article is sold the amount is put down in the cash book and handed to the cashier, but the name of the article is not entered; has seen Mrs. Costello at the shop several times purchasing articles; she has been so served by Mr. Jackson, or any young man that might be disengaged.

            By the Attorney-General. - Never notices Mrs. Costello purchasing the three silk shawls, nor anything like them.

            Three other shopmen of Mr. Watchorn's stated that they had never sold to any person any of the articles produced; and Mr. D. C. Swift deposed to the searching of Costello's house and finding the property there; also Donahoo's, with the same result; Mrs. Costello said she had purchased most of the things, and Donahoo said those found in his house belonged to him.

            Mr. Calvert, gun-maker and ivory turner, knew the prisoners Costello; he saw Donahoo at the bar of Costello's public-house on the Thursday before they were apprehended; while he was there, a person came in and asked Costello if he had any handkerchiefs; he said he had plenty; the man then asked if he meant to raffle them as he did on Saturday? Costello said, no, as it made such a row, but he would sell some at prices varying from 3s. 9d., 3s. 10d. and 6s; he, witness, saw no handkerchiefs there, nor did he know whether the prices named were reasonable or otherwise.

            Both the learned counsel exerted themselves greatly for the prisoners, Mr. Stewart contending that there was no proof that Donahoo stole the articles found at Costello's, and Mr. Stephen that the articles found there had been stolen at all.

            His Honor observed, that he did not see how he could put the case against the Costellos to the jury, as there was no proof that the articles found there were stolen by Donahoo, the principal.

            The Attorney-General urged that there was evidence to show that the articles had been stolen, and that Donahoo was acquainted with the Costellos.

His Honor observed, that he should have to remand these for another information, in which they would have to be charged with having received some goods stolen by some person or person unknown.

            The Costellos, were accordingly acquitted, and remanded; and the jury, after retiring for about quarter of an hour; found Donahoo Guilty of stealing the brush, the frock, and the boots and acquitted on the rest of the information. He was sentenced to transportation for seven years, with an intimation that he should pass at least four years atPort Arthur. 

Montagu J., 27 April 1841

Source: The Hobart Town Courier and Van Diemen's Land Gazette, 30 April 1841

TUESDAY, 27th APRIL.

The Court opened this morning for the trial of the Costellos on a second indictment, when the prisoners stated that they were not prepared to take their trial, as their witnesses were not ready; they hoped His Honor would admit them to bail till the next Sessions; His Honor peremptorily refused to do any such thing, but he would adjourn the court for any reasonable time, and if they were not prepared for trial, he must send them in jail till the nest Sessions; the court was accordingly adjourned till one o'clock, when the prisoners were arraigned upon a charge of receiving certain articles (the same as before) from some person or persons unknown.

            The evidence was to the same effect as that adduced before and Mrs. Costello cross-examined the several witnesses as to the identity of the various articles, with great boldness and pertinacity.  The evidence, however, was too clear and conclusive, and the jury found them both Guilty.

WEDNESDAY, 28th APRIL.

James and Margaret Costello were then brought up for sentence, and on being asked if they had anything to say why the sentence of the court should not be passed upon them, Margaret Costello said they wished for a fresh trial and that the judgment of the Court should be recalled, as they did not think that they had justice done to them, as they had no lawyer.  His Honor of course disregarded such an absurdity, and after some severe observations on the heinousness of their crime, he sentenced each to transportation for 14 years, the husband to go in the first instance to Port Arthur.

Notes

[1]              See also Hobart Town Advertiser, 30 April 1841; Austral-Asiatic Review, 27 April 1841. According to AOT SC41/5, pp. 73-4 by order of the Colonial SecretaryDonahoo was sent to Port Arthur for four years and his conduct was to be reported.  JamesCostello was sent to Port Arthur for five years  his conduct to be reported and MargaretCostello was sent to the Female Factory at Launceston and then assigned but not to either of the towns.

 

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