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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Jones (No. 1) [1841]

burglary - stealing in dwelling house

Supreme Court of Van Diemen's Land

Montagu J., 2 March 1841

Source: The Hobart Town Courier and Van Diemen's Land Gazette, 5 March 1841[1]

            John Jones stood charged with a burglary in the house of Morris and Benjamin Nelson, in Elizabeth-street, on the night of the 10th January last, and stealing therefrom six black silk handkerchiefs, of the value of 30s; and eight coloured do, of the value of 24s.

            Benjamin Nelson lived in Elizabeth-street at the time mentioned in the indictment, and was in partnership with his brother; at 9 o'clock, witness locked up the house, and went to spend an hour with a neighbour; his brother came to him, and they both returned after 10, when they found the door of the house open; missed sixteen handkerchiefs, with other things; about half an hour before he locked the door he saw the handkerchiefs; does not know the prisoner at the bar. (The handkerchiefs charged in the indictment were now produced and identified as belonging to the witness.)

            By the Court. - The lock of the door was broken with a chisel.

Morris Nelson corroborated the testimony of his brother.

District Constable Symmonds apprehended the prisoner on the morning of the 11th of January last, in Liverpool-street; found upon him the six black and eight coloured silk handkerchiefs now produced; witness asked how he came by them, and the prisoner said - 'what was that to him?' they were wrapped up in a parcel; witness examined the door of Messrs. Nelson's house, and found that the lock had been forced, apparently with a large chisel; he first saw the prisoner in Bathurst-street, near Walton's public-house; there was a man named Johnson with him; they went into Elizabeth-street and turned up Liverpool-street, where witness apprehended Jones, near Mr. Henry's public-house.

            By the Court. - The prisoner knows witness; cannot tell whether the prisoner saw him or not; he, witness, was accompanied by another constable, but neither had staves with them; the prisoner might have escaped had he seen witness and known that he was aware that he had stolen property in his possession; believes that the prisoner lodged at that time at Mr. Walton's public-house.

            John Nuttall is a bootmaker, and lives in Elizabeth-street, three doors from the house of the prosecutors; remembers walking backwards and forwards and seeing the prisoner looking up at Nelson's house on the evening before the robbery was committed; he took particular notice of him, as he thought he was waiting for some person; this was near 10 o'clock at night; he was alone.

            By the prisoner. - Witness did not say at the Police Office that he saw a man, named Kay, with the prisoner on the night mentioned.

At the prisoner's request Mr. Nuttall's deposition at the Police Office was read, by which it appeared that he had seen Kay with the prisoner during the week; and also, that he had observed Jones at the back of Nelson's house, where there was no thoroughfare.

            Mr. Swift deposed that he went to Nelson's house on the night of the robbery, and found it in the state described by District Constable Symmonds.

The prisoner in his defence declared that he had found the property near Mr. Kemp's dead wall, as he was returning home on Sunday evening, and that he was proceeding with it to the Police Office where he was apprehended. 'How often your Honor,' said he, 'do we read of persons throwing away stolen property in endeavouring to make their escape, and then that it is afterwards picked up by an innocent man?' He would call one witness who was with him when he was apprehended.

Henry Johnson recollects going to Walton's on the Monday morning that the prisoner was apprehended; the prisoner was dressing, and in a few minutes he was ready to go out; after he was dressed, he and witness went into the parlour and sat down for a little while; prisoner had a glass of gin which witness paid for; witness said he was going home to breakfast, when Jones said he was going his way and would walk with him; they walked as far as Mr. Henry's public house when the prisoner was apprehended by Mr. Symmonds.

By the Court. - On coming from Walton's house to Henry's, the prisoner told witness that he had got some handkerchiefs and was going up the street with them; this was all he said about the handkerchiefs; he did not tell witness that he had found the handkerchiefs and was going to take them to the Police Office.

His Honor summed up with his assumed clearness and precision, commenting upon the evidence, and directing the jury's attention to the main points, and especially to the identity of the prisoner. There had been no evidence as to his character, and consequently it might be presumed that his character was good; should there be any doubt therefore on the minds of the jury, it would be better to give the prisoner the benefit of it and acquit him.

The jury, after an absence of more than half an hour, returned into the box, when the foreman, Mr. Kelly, asked his Honor whether they could separate the burglary from the stealing? His Honor explained that they must find him guilty on the whole or a part of the information - either for the breaking and entering, or the larceny - they could not find him guilty under that indictment. The jury again retired, and returned with a verdict of Guilty generally.

His Honor addressing the prisoner, observed, that he should not have entertained the slightest doubt of his guilt; he was an abandoned, profligate, bad, flash character; a very wicked man; his police character was extremely bad; he had been flogged several times and received 120 lashes, besides being worked in chains; he should, his Honor would take care, be sent to Port Arthur, and there worked in chains for five or six years; and he hoped that the Government would immediately deprive him of his ornaments (the prisoner was flashibly attired) and clothe him in a manner more suited to his situation. His Honor then sentenced him to Transportation for Life.


[1]              See also Hobart Town Advertiser, 5 March 1841.  According to AOT SC 41/5, p. 69, by order of the Colonial Secretary Jones was sent to Port Arthur for five years.


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