Cite: http://nla.gov.au/nla.news-article2210732

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Supreme ttourt.

MONDAY, FEBRUARY Utb.

(Before His Honor Mr. Justice Dowling.)

James Felton and John Grey, stood indicted for burglariously breaking and entering the dwelling house of Luke Dillon, on the 7th Jnnnuary, 1833, at Bathurst, and taking therefrom, 1 bug, value-fid., 20 pieces silver called h-df-crowus, 20 pieces called shillings, 30 pieces called sixpences, and a draw containing 300 pieces called pence, tho property of Luke Dillon as aforesaid. Other counts charged the prisoners with larceny, with attempt to steal,

«Sec «Sec.

The prisoners were defended by Mr. Rowe. The "irst witness exarainod was- .

Mary Dillon-I reside nt Bathurst ; I keep an inn ; I remember the evening of tbeöihof Jnnuary ; it was Sunday evening ; I retired to rest about tan o'clock, taking particular care to secure the premises in nil parts as usual ; no person slept in the house with mo excopting a little girl ; there were two male servants in my employ who slept in a kitchen at some distance; the kitchen is quite detached from the house ; in the middle of tbe night I was disturbed witb a noise, as if some person being in the bouse; ou looking into the roora, I saw a tall man with a razor' in his hand ; I was apprehensive of personal danger from tbe appearance of the person, and did not immediately stir or make any noise ; there wns a small ticking bag in my bed- room, in whicb I had deposited about £5 in silver of the ooins specified in the indictment, ivhich the prisoner took away ; I have not since seen it ; I arose and procee«led to the window, whicb I found open ; part of the shutieis and sash having been hroken in order to remove the nail with which I had fastened it the previous evening ; I imagine it was then obout one o'clock in the morning of the 7 h Junuary'; the moon which then shone with great splendour enabled me, notwithstanding my agita'ion, to recognize the person and features of tbe prisoner Felton, whom I had seen before in my tap-room ; he was then ia the verandah ; the pe son of the prisoner Gray was quite unknown to me, but it struck me thai I should be oble to point bim out from his size and the colour of his hair, which was dark ; I saw both men leave the verandah ; I have no hesi'ution in saying the prisoners aro thoie meu ; one of my sorvants carne on bearing the alarm, in order to render assistance, the other did not ; gave information to Mr. Watson, chief constable, who found two pair of shoes on the premises, which were next day recognized by two other witnesses as belonging to the prisoners at the bar.

Cross-examined by Mr. Rowe.-Have not seen my husband, Mr. Luke Dillon, for some years ; we separated about 5 or 6 years »go in consequence of a mutual domestic arrangement ; I believe he .went to England ; cannot speak as to his intention not to return to the country ; the' house and furniture I bave in my own name, as also the license; 1 have found satisfactory sma ties for the conduct and management of tbo said inn.

[The learned counsel here stated to the Court tbat the indictment must fall to the ground, the husband of the prosecutrix having boen absent many years ; and as there was no proof that he was not dead, could not be recognised as having any interest in the property stated in the indictment to have been stolon from bim ; whereas the house, furniture, license, &c. was proved in evidence to be solely in the occupa- tion and disposal of the prosecutrix.]

The learned Judge having detailed to the Jury the law of the case, and overruled the objection taken by Mr. Rowe, observing thnt the burthen of proof, as to tbe death of the husband of the prose- cutrix, rested on the shoulders ol' tbe prisoners, tho law presuming a person to be alive in the absence of proof to the contrary. The case then proceeded.

William ' Hudson examined-I was servant to Mrs. Dillon, of Bathurst, on the day laid in the indictment ; I m as awaked by an ulai m in the house ; another man who slept in the kitchen with me had arisen, but I did not ; I bad lain awako for some time when my mistress come into the kitchen and called me by my name ; I answered ; wb n she told me I was not wanted ; after remaining for some time I arosu and went into the bar % my mistress appeared to suspect that I was one of the party who had been concerned in the robbery, and I was minutely ex a

mined and turned round by my mistress, who ob- served that the person was about my size, and bad dark hair similar to mine -, I was then sent to in- form the Chief Constable of the transaction.

Cioss-examinud by Mr. Rowe-I am very cer- tain that my mistress said to me what caused me to believe 1 w.is suspected ; I have since left her ser- vice inconsequence j I did not remain longer than the Wednesday week following.

By the Court-1 went to the residence of the pri- soner, and found he was not in bed ; it was not sus- pected by the person residing with him that he had not been ia bed ; his absence was a matter of sur- prise.

William Webb-I am a shoemaker by trade, and reside near Al'oway Bank, the estate of Captain Piper, by whom I was occasionally employed as a musician; as a shoemaker I work for my own ad-   vantage ; I know the prisoner at the bar ; he is an assigned servant to Captain Piper; -I remember the shoes now produced ; I repaired them for the pri- soner Grey; tbey did not appear to be mad» for him ; they were of a small size, like those of a wo- man ; remember having seen them on the prisoner Grey on the Sunday morning previous to ihe rob- bery.

John Coller examined-I am a shoemaker at Cap- tain Piper's ; I remember making a pair of shoes for the prisoner Felton, about 5 month's ago ; those now produced are the same.

Cross-examined by Mr. Rowe-Shoes will not generally wear so long if constantly worn ; it is a very long time to wear a pair of shoes j I do not know the pincers now produced, I have seen a smaller pair at Captain Piper's, but caunot say tbey

are the same.

Mary Dillon recalled, and cross-examined by Mr. Rowe-I did not accuse the witness Hudson of being concerned iu the robbery ; did certainly con- sidérât strange tliat be remained in bed instead of rising to reuder assistance ; but it afterwards oc- curred to me, that he had received a severe fall from a horse the previous day, and hurt his back ; 1 was quite satisfied ; I never charged two men, named Crowie and Trocey, witb the robbery ; observed the men bad some resemblance to them ; nothing

further.

Isaac Watson-T am Chief Constable of the dis- trict of Bathurst ; I remember being informed of a robbery whioh had buen committed in the day laid in the indictment at Mrs. Dillon's ; I found the ptemiS'S bud been entered by forcibly removing ibe fastenings of the window of the house ; a drawer, coiitiu'ning some copper money had been found near the house in which wero the pincers now pro- duced ; the two pair of shoes now produoed were found under the verandah ; they were subsequently triad on the prisoners and found to fit them exactly ; I took the prisoner felton into custody nt a very early hour in the morning of the 7tb January ; he was without shoes ; the other prisoner was Uken

some time after.

The evidence for the prosecution being dosed, the prisoner Felton stated in his defence, that having gone the preceding evening to an adjacent farm, he had taken a few glasses of spirits, whioh having overcome him he lay down, and found on awaking be had been robbed of his hat and shoes ; he arose and proceeded towards home, when he mat the Chief Constable and Mrs. Dillon, who took bim into custody. The Jury retired for a few minutes, when a verdiot of guilty was returned.

The learned Judge having intimated to the pri- soners the very narrow escape they h.id from an ignominious death, under tho influenoe of some point of law, ordnredjufgrneiit of death to be recotded.

Thomas Tcole stood imlioted for stealing two cows, yalu«j £l, two oalves, value £l, ami two steers, value £\, at Bungarrihlr.ee>, on the 2Bih of Noven» . ber, iQ3i, the property of James Smrthe».

Mr. Theruy appeared ii oounielfor the pri-

soner.

James Smithers stated in evidence, that hu is a settler at Burragorang ; that some time in the month of August last a levy waa made on his oatile at the suit of Myles Leary, of Sydney ; about 85 head wore accordingly removod from the stock-vard ol' the witness, by virtue of tho said warrant of distress, and driven away ; witness proceeded to Sydney (or the purpose of witnessing (he sale of his cattle, when he found that 43 head only bad arrived ; no account was given him, however, of the remaining num- ber, nor was he since fortunate enough to ascertain any thing of them ; he subsequently found two steers-those specified in the indictment-which cuma back of their own accord, but he was sur- prised to find that some persona, in order to ap- propriate them to their own use, had affixed on I In1 ni the brands T 'J' and E G, they having no brand whntever when driven away.

James Stacy, a stockman belonging to the wit- ness Smithers, had been informed by John Lynch also a stockman in the employ of the prisoner, that he received from the prisoner (his master) two steers along with 20 head of other cattle which he knew to belong to Smithers. Stacy informed his muster of this circumstance, who told him not to give himself anv double about them, as he knew they would come home. The prisoner was howe- ver, taken and held to bail for his appearance at the Criminal Sessions, on the presumption arising out of their being brandod in his name, and having been given by him in charge of the witness Lynch. They were again feloniously taken during the night from the stock yard ; one of them was found at the dis- tance of 20 miles ; his side exhibited a gun shot wound, no part of the evidence went to shew that the prisoner was in any way connected with this

felonious removal.

The learned Counsel, in bis cross-examination of the witness Lynch, shewed that he gave his evi- dence undor no friendly feelings, having been taken bv the prisoner (his roaster) before the Bench of Magistrates at Campbell-town, on Thursday last for negligence, in losing cattle and disobedience of orders, when he was sentenced to forfeit six months' wages, and be confined for two months ; it was pre- sumed by the Court, that had the prisoner been so much in the power of the witness as his evidence went to shew, he would not have excited the re- vengeful feelings of the witness Lynoh, by adopting such measures. The jury returned a verdict of Not Guilty, and the prisoner was discharged by pro- clamation. The absence of the necessary witnesses prevented the Court from proceeding, and it was accordingly adjourned till 10 o'clock this day.

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