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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Hobley, Yarwood and Eastcourt [1841]

highway robbery

Supreme Court of Van Diemen's Land

Pedder C.J., 29 January 1841

Source: Hobart Town Advertiser, 2 February 1841[1]

Before His Honor the Chief Justice, and a Civil Jury of Twelve - the first Supreme Court Sittings under the new Act

            Thomas Hobley, William Yarwood, and William Eastcourt were indicted for assaulting James Cole, on the 21st December, and stealing from him a monkey jacket, value 5s., his property.

The Attorney General, in opening the case, said he had felt it his duty to indict these men for highway robbery, which, under a local act, was capital although there might be a doubt hereafter whether the crime amounted to highway robbery. This would be however a question of law for his Honor's decision.

            Thomas Cole. - I reside at Snake Island, in D'Dntrecastenaux's Channel. On the evening of Tuesday, the 22nd December, I was at my own house; I was disturbed by the dogs a little past eleven; I walked out, and observed what I believed to be a boat landing at the point. Shortly after, I saw four men, who walked up to me; one asked me where Mr. Cole was; I told him I was the person; he said they wanted me; I asked what they wanted; they asked how many men I had; I told them I had four; they asked if they slept under the same roof; I told them no - I did not allow that, and asked who authorised them to ask those questions; one of them said - we'll soon show you our authority, and ordered me to walk into the house. I went in; one of the men followed me inside; the other two stood at the door; one, Hobley, was armed with a musket, another, Eastcourt, with an axe, the latter stood outside under the verandah; the other two men were searching inside the house for clothing; one of them took a monkey jacket from under the head of my bed, and put it on directly; this is the same; it is my property. Two of the men went into another room, saying they wanted different articles of clothing, and were going round to the storeroom, the keys of which they demanded. My daughter took the key and went with them. There was a light in my daughter's room, which she brought out to where I was; they took it with them when they went to the storeroom, and I was left in the dark. While they were absent I was seated in the chair considering what was best to do. I said to the man with the gun - I want go to bed; previous to which I had taken a knife off the table; he made no reply. I got up, and asked to go out of the door; he said - You can't come out; I said I wanted to go out; he said - I can't let you out till the other men come; he retreated back, and levelled the musket at me. As soon as he did that, I seized the musket, and made a blow at him with the knife; he held on the musket, and cried out, and the other men came to his assistance. A scuffle ensued; two of them got hold of me, Hobley and a man named Jarvis, I all the while striking with my knife when I could get a chance. At least they got me on my back; Hobleyand Jarvis were a-top of me, and had hold of me by the handkerchief. I had the knife behind me and kept sticking to make the men let go. I heard my daughter, and called her to my assistance. She came and disengaged the man's hand from my throat, and I by a struggle shook them off, and got on my feet and ran up to the men's hut; just before I got to the hut I met one of my men coming down, and ran back again to the beach, where I left the men. The struggle began at my house and continued to the beach about 30 or 40 yards distant. When I got back to the beach the men were gone; and I saw a boat 40 or 50 yards from the shore; I could discern people in it. While struggling with the men the axe I have spoken of was rose over my head several times by one of the men, but I tried to avoid it. I can't say how I fell - a blow was made but I prevented it; several blows were made at me. After the men had left I got a light and looked about the place. I found a gun, an axe and a tomahawk, which were not there before the men came. The next day I found a boat afloat in the channel; there was a good deal of blood on the boat and gear; I saw my jacket on Yarwood's back the next day in a Birch's Bay station boat; he was in custody. This rent was not in the jacket when the man put it on.

            Cross-examined. - I speak to the identity of Hobley, from the wounds he received, and his being the smallest man. It was the smallest of the four who attacked me that had the gun.

By a Juror. - The men took away besides the jacket, a coat and a hat. This is the coat, and this is the hat - this coat was on Jarvis - I think Hobley had the hat on. I cannot speak as to the features of any of the men.

Re-examined. - It was the shortest man of the four that had the musket. I saw Jarvis in the Boat with constable Wicks, the day after. Jarvis stood, I think, about 5 feet 10 inches, nearly as tall as Yarwood. The man who carried the axe was a tallish man; I saw Jarvis after he was dead, about a week back, when the Coroner's inquest was held.

Margaret Cole, daughter of last witness. - On the night of the 22nd December, I was disturbed after I went to bed. I got up, and came out into the verandah. I saw three or four men. I had a light in my room. I fetched it into the parlour first, and then into the kitchen. I went into the parlour with my father, and four men came in after us. They all came into the parlour. Two went into my mother's bed room, and two stood in the parlour, where I remained. The light was there in my hand. My father was already in the parlour. I held the light till two of the men went into the kitchen for flour. The parlour door opens into the verandah. When I went to the kitchen my father was sitting near the fire. The two men were in the parlour. One had a gun, the other had something which I did not notice at the time. Yarwood is one of the men who went with me into the kitchen. I do not see the other men. I was present at an inquest of the Arrow Tavern, about a week ago. I did not see the body. While I was in the kitchen, one man was in the store room, the other remained in the kitchen with me. He was trying on the carpenter's shoes. I had the light in my hand at this time. Yarwood was the man who remained in the kitchen. I heard a sort of scream, and ran out of the kitchen to the front of the house. I saw a man running away, and another man running after him, and heard some one cry out "Kill him." I heard some person scuffling down towards the beach, and I ran down, and stumbled over something on the beach, and saw a man with my brother's hat on, on the ground. I thought it was my brother, and raised his head. He did not speak to me, and I screamed "They're killed my brother." I heard my father say, "Margaret, come here, and call John, or they'll kill me." I went down, and found a man lying on my father, and another man standing over them. When my father called, I thought he was choking; I then ran up and told the man not to kill my father, for I should never get another like him. One of them said, go in doors, we will not kill your father. I then tried to get the men off who was twisting my father's handkerchief. I pulled both his hands away from my father's handkerchief; I looked round to see if the carpenter was coming to our assistance, and saw another man with something raised as if he was going to strike - I could not see what it was. The man who was lying on my father said, "kill the savage, for he's stabbed me in twelve places." To prevent the man getting hold of my father again, I put my arms round him and dragged him towards me. My father then got up and ran towards the men's hut; I saw three men there - I had seen four before. I saw the three men go to the boat, first picking up the man that I thought was my brother, who they took into the boat - the boat then went off. The two men ran out of the kitchen before me when I heard the scream.

James Wicks. - Is a constable; apprehended Yarwood, Hobley, and another men on the 23d December about 7 o'clock in the morning, about a mile and a half from Birch's Bay, opposite Snake Island; the other man is dead; I saw his body at the Colonial Hospital about a fortnight ago. Mr. Cole's is about 2 miles across the river from where I apprehended the men; I saw blood on their clothes, and they told me they were wounded. Hobley had his hand to his side - Yarwood had his head tied up. I brought them to the Colonial Hospital, where I saw them undressed; I counted seven wounds on Hobley in different parts of his body and his arm; Jarvis had one wound in the side; Yarwood had a cut on the head. I found this hat upon Hobley - this is blood upon it - this jacket on Yarwood - the coat upon Jarvis. I received this gun, axe, and tomahawk from Mr. Cole; I delivered the things to Mr. Swift; I am sure they are the same articles - I got them from him this morning. The three men I apprehended were all lying down together in the bush.

Constable Swift identified the articles now produced.

            James Morven. - I apprehended the prisoner Eastcourt on Christmas day, at Spider Creek, about three miles from Birches Bay, in a hut belonging to John West; he was at home; I told him I apprehended him supposing he was a runaway; he took me into the bush and fetched out a bag, a keg and a tin pish; I handed him over to District Constable Webber; when I took him he said if I meant taking him he was the fourth man that was at Mr. Coles; he cried at the time he said it.

            James Webber. - District Constable at Birche's Bay - Know John West's hut; about a mile and a half from my station; Wick's station is thirty miles from mine; Mason gave Eastcourt into my custody; I searched him and found on him a blue shirt and other articles; this is the shirt; it appears not to have been worn. Afterwards Eastcourt told me he was the man we had been looking for, as he was the fourth man at Mr. Cole's.

            This was the case.

            Hobley wished the deposition of Mr. Cole at the Police office read; the other two prisoners did not; their case was therefore first sent to the jury who found them both Guilty.

            Mr. Cole's deposition was then read, and his Honor directed the jury to consider, - first whether the variances in the depositions of the Police office and his evidence in court were so material as to render his evidence unworthy of credit. If the jury were of that opinion they would have to consider the case against Hobley on the other evidence.

The Jury were of opinion that the credibility of Mr. Coles evidence was not shaken, and without retiring returned a verdict of Guilty.

The prisoners were then removed.

Notes

[1]              See also Hobart Town Courier and Van Diemen's Land Gazette, 9 February 1841 (contains plea for mercy to the Lieutenant-Governor).  According to AOT SC 41/5, p. 67 it was Hugh Yarwood and by order of the Colonial Secretary all three were sent toPort Arthur for life and kept to hard labour in chains for seven years.  See also AOT GO 44/1, Judge's Report, 6 February 1841.

 

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