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2-142 (Original)

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Thursday, May 12. - Before His Honor Mr. Chief Justice Dowling.
On the opening of the Court the Clerk called the pannel, and the following Jurors were fined for non attendance:- Thomas Burdekin, Esq, £5; Charles Beilby, Esq, £5; John Black, Esq, £5; William Barton, Esq, £5, and Mr. Charles Bones, 40s.
When the Clerk ballotted the Jury, Mr. Attorney-General addressed the Court, and said that in the absence of almost all the special Jurors, he would not go on with the case of the Deanes for stealing and receiving cattle. The names that had been called were almost all-publicans, and in the absence of the merchants he would not risk the administration of justice in other hands; and he must remark, that the persons who wished to bring the jury system into disrepute were the very persons who remained away, because 40s. or £5 was a small sum to them, and they did not care about it. He had no hesitation in saying that they had other motives in stopping away from their duty; and the Court must consider that he could not challenge, except from cause, which, as the parties were so little known to him, was tantamount to no challenge at all; he could only put them to one side until the pannel had been gone through, when the very parties to whom he objected might then be put on the Jury.
The Clerk then proceeded to call the Jury, and the following challenges were made: - Edward Borton, publican, by the Attorney-General; William Blackwell, brewer, by the Prisoners; William Buthee, publican, by the Attorney-General; Robert Batts, publican, by the Attorney-General; William Barnes, publican, by the Attorney-General; William Bruce, publican, by the Attorney-General; S. M. Burroughs, land-holder, by the prisoners; Joseph Barnett, publican, by the Attorney-General; Gregory Board, by the Attorney-General.
S. W. Broughton, tailor, was called, when Mr. Thomas Broughton stated that his name was no S. W. Broughton, and objected to sit; he was accordingly excused. Mr. Brown, junior, saddler, pleaded being a minor, and no householder, and was excused accordingly.
The following Jury were then sworn:- Robert Bourne, mercer; Thomas Buxton, wheelwright; William Brady, cabinetmaker; John Burt, baker; James Bibb, blacksmith; Samuel Benjamin, shopkeeper; Richard Binning, saddler; Robert Broad, silversmith; James Blanch, ironmonger; William Byrne, shoemaker; Thomas Byrne, grocer; George Buckingham, grocer.
John Deane stood indicted for stealing three head of cattle, the property of W. C. Wentworth, Esq, at Penrith, on the 15th of January last; and William Deane, for receiving the same, well knowing them to have been stolen.
Thomas Ashby, a butcher, at Parramatta, deposed that on a Saturday, some time in January, he received notice from John Dean that he had brought a lot of cattle down the country for sale, and witness said he would go out and look at them; he afterwards saw a young man named Beazley, also a butcher, and they agreed to go together on Monday morning; on Monday morning witness called at Beazley's, and was told that he and John Deane had started shortly before, on which witness rode on and overtook them about three miles on the road; they all three proceeded to William Deane's house, on the western road; when they got there, there was a lot of cattle, between thirty and forty, in a yard opposite William Dean's house, and witness selected eighteen head out of the lot, which were kept in the yard, and the others were turned out in a paddock; during the time the cattle were being drafted, William Deane stood at the fence looking on, and a dispute having occurred about the price, he said "What haven't you dealt yet;" William Deane said he had one beast in the lost; the price was at last agreed on at £4 a head, and John Deane stating that he was in want of some money to take up a bill due at Sydney, witness paid him £41 10s. out of the price of the cattle, £71 10s, for which he took a receipt on the bottom of the list describing the cattle given to him by John Deane; there were various brands on the cattle, some JD with numbers, some WW, and others; but witness, from the public manner in which the sale was effected, had no suspicion of unfair dealing; the price he considered a fair one, as the cattle were not first quality, and some of them very poor; the three head of cattle claimed by Mr. Wentworth were amongst the lot purchased from John Deane.
William Charles Wentworth. - In consequence of information I received from Ashby the butcher, I proceeded, with a man named Hugh Taylor, on the morning of Thursday the 28th of January, to William Deane's house, on the western road; on my arrival there, I saw a lot of cattle in a pound or yard opposite Deane's house, in charge of Proctor, the chief constable of Penrith, and the prisoner, William Deane, was there; almost the moment I entered, I saw a cow which I knew to be mine, and shortly after two heifers which I also recognised; I asked William Deane how, knowing what a notorious cattle-stealer his son John was, he could allow him to bring a lot of cattle with sixteen or seventeen different brands to his place; at the first view I guessed that there was that number, but, as a matter of fact, there were only thirteen different brands in thirty-five head of cattle; William Deane replied to me "I assure you Mr. Wentworth that the cattle only arrived yesterday, when they were put into the paddock, and I had no opportunity of seeing them before this morning;" knowing from what Ashby had told me, that he was telling me a lie, I said to him "do you persist in saying that they did not arrive until yesterday, and that you had no opportunity of seeing them before this morning," and I cautioned him to be careful how he answered, and I called on Proctor to witness the answer; he still persisted in the story; I then said to him, "Why, it is impossible for any man to see this lot of cattle without his knowing them to be stolen; besides, there are only two or three head which purport to be your cattle, and I know them to belong to John Dickson;" to which he replied, "What, to John Dickson? why, his cattle are considered fair game for any one, and are any man's property;" I said to him, "Mr. Deane, if this is the sort of morality you instill into your children, I am not surprised that they are what they are;" the cattle I identified were one black cow with a white back, branded with a W on the off hip and a W on the off shoulder, a red heifer branded in the same way, and a spotted heifer branded with a single W; I was quite sure of their identity both by the breed of the cattle and by the brand; some short time after, I went to Penrith to give my deposition; when at the court-house, the prisoner, William Deane, came up to me and said, "Mr. Wentworth, I am now satisfied that the cattle are all wrong, and my son must be a great scoundrel to bring this on me," to which I answered, "Mr. Deane, you did not discover that to-day; you knew it before;" the cattle were given up to me by the magistrates, and are now in my possession.
Cross-examined. - Some time back, I sold John Deane a lot of wild cattle, which were running in the new country unreclaimed; they were branded with DW and W, and I sold them because I could not get them in; the cattle in question were none of those, but my own private cattle of a very select heard, which I was particular in breeding at Toongabbee; I have no doubt but the cattle were stolen two years back, driven up to Argyle, kept there for some time, and brought down again for sale; it will be two years next month since I gave up possession of the Toongabbee estate, and my cattle were all removed at that time, and branded before removed; Mr. Atkins took the farm from my brother, and entered on it when I left, and I sold him a few cattle from my heard; Hopkins is my assigned servant, and used to milk the cows on the Toongabbee estate; I must state that I was quite surprised on going to Deane's to see my private cattle there; I had received information that John Deane had some of my cattle, but I expected to find those branded with my father's brand, and not my private cattle; I cannot swear that I did see the three head of cattle I saw at Deane's before then, but I am nearly certain that I saw the black cow, and I am positive they are none of those I sold to Mr. Atkins; I brand my cattle in various ways; I used to brand them with WCW, but gave that up on account of the brand being so large and clumsy; I also brand WW; when at the court at Penrith, there were persons who said that the cow had never had a calf, but Hopkins said she had, and he had milked her; and since she was delivered up to me she has dropped a calf, and goes into the bail like an old milker, which proves that Hopkins was right in his assertion, and that those who stated the contrary were wrong; William Deane was not in a passion when I said that his son was a notorious cattle stealer; he replied that his son had no business to be a cattle-stealer, as he had given him full and fair, and set him up in the world; I do not know that William Deane is deaf; I knew him to sham deafness to avoid sitting on the Jury, but persons who know him better than I do have stated to the contrary, and have relished it as a good joke, and I have been told that he made a boast of it himself; I sometimes brand my cattle on the neck, but always with WW; and the reason of my doing so is to distinguish the different breeds, so that I may not be deceived in crossing the breed; I should say that I have missed at least fifty head of cattle from the Toongabbee estate from time to time, and those I did miss were all my best cattle; I knew where they went to, but I could never bring it home to the parties; I think the cow must be three years old, and the heifers about two years and one month; some of the cattle I saw at Deane's were very poor and would only have been fit to throw into a rough contract; I was much dissatisfied with Ashby's conduct, and told him at the time that he had given too little for the cattle.
William Hopkins, a milkman, in the service of Mr. Wentworth, stated that Mr. W. had taken him up to Penrith to look at some cattle; and he there saw a black cow which he knew to belong to Mr. W, as he had milked her about eighteen months ago, at Toongabbee; she was branded W on the off thigh, and W on the off shoulder; he also saw two heifers which he knew from having milked the mothers when they were calves; the mothers were at Mr. Wentworth's station at Bathurst; he did not recollect the cow being branded, but had assisted to brand the heifers. (This witness, who was an old man, was rather vague in his description of the dates, which appeared only the effect of ignorance and forgetfulness.)
John Proctor, chief constable at Penrith, deposed that in consequence of a letter he received from Captain Savage, he proceeded to William Deane's house on the Western Road, and took charge of a lot of cattle which he conveyed to Penrith, and took an account of. The list produced was a true description of the cattle he so seized. (This witness corroborated the whole of Mr. Wentworth's testimony as to what passed in the stockyard between Mr. W. and William Deane.)
Charles Castles, a constable at Penrith, accompanied Mr. Hayes into a paddock belonging to William Deane, to look for a bullock belonging to Mr. Hayes, which had broke out of Deane's yard, and there saw a lot of cattle having seventeen or eighteen different brands on them, which, considering to be very suspicious, he told Mr. Hayes so, and he concurred with witness, and advised him to keep his eye on them. When they left the paddock and went to Deane's house, he began to abuse Mr. Hayes, asking him what business he had to go into his paddock to look at his cattle without permission. Witness gave information to Captain Savage, who desired him to keep charge of them, and assistance should b sent to him, and accordingly he was joined by Proctor; William Deane told witness that he had one or two head of cattle in the lot, and witness supposed him to be part owner of the cattle from the interest he took in them; witness saw Thomas Deane there just before Mr. Savage arrived, but he absconded, and has not been seen since; one of the cattle was sold to Captain Okeden, of Minchinbury, who drove it away; witness not thinking it safe to go after one at the risk of losing the rest, and knowing if he lost the meat, he was sure of the hide; when Captain Okeden drove the beast away, William Deane stood in the middle of the road, and his men drove the beast out of the paddock; the beast was branded JS No. 3, and the hide is now at Windsor court-house, but nothing has been done in that matter. (This witness corroborated the former testimony as to other points.)
This was the case for the prosecution.
For the defence, Mr. Charles Smith state that he had known William Deane for fifteen years, and had a high opinion of his honesty; knew him to be a blustering rough-spoken man, and that he had made himself many enemies by his bluntness; but was certain that he would not knowingly commit a dishonest act. - Mr. R Therry said that he was present at Windsor Quarter Sessions, about two or three years ago, when William Deane was charged with receiving cattle, and that he was then acquitted; but on what grounds, being a question entirely for the Jury, he could not speak. - Mr. Robert Nichols deposed that William Deane was honorably acquitted of the charge against him at Windsor, and witness thought very justly so, as he was satisfied of his innocence. - Mr. John Thorne had known William Deane many years, and never knew anything bad of him. - Mr. J. H. Grose gave William Deane a high character for integrity, when he spoke of from experience for many years, during which time he had had large commercial dealings with him; and if he were acquitted on this charge would lend him £1000 without security or any acknowledgment of the debt. - Written characters from the Rev. Henry Fulton and Dr. Harris were put in and read by consent of the Crown officer.
His Honor summed up at great length, read the whole evidence from his notes, and remarked that a strong feature in the case was the prisoners not bringing forward any evidence to account for the cattle being in their possession, when it appeared in evidence that they had said the cattle could all be accounted for; also, the circumstance of William Deane denying having seen them before the Thursday morning, when Ashby had sworn that he was present on the Monday when they were drafted. Was this what would be expected from a man who was really innocent? The Jury must also look to the character given to the prisoner William Deane, but character could not be considered if the fact were clear. If the Jury had any reasonable doubt, of the prisoner's guilt, then they would give the prisoner the benefit of the character, and acquit him; but if they had no reasonable doubt, they must reject the character altogether. With respect to the prisoners having been tried before and honorably acquitted, they had nothing to do; they must try the case by the evidence laid before them that day, and not allow their minds to be biassed by any former proceedings. He must remark, however, that a verdict of not guilty did not necessarily imply an honorable acquittal, for a man might be found not guilty by the case breaking down for want of evidence, or by a technical objection, which would not amount to an honorable acquittal. The Scotch law provided a remedy for this doubt, by allowing an intermediate and very salutary verdict of "not proven," which was given when the Jury were not satisfied of the innocence of the party accused, but had not sufficient evidence to convict him; and by this means the verdict of not guilty was considered an exoneration from any guilty knowledge. The English law did not allow of this, which was frequently to be regretted, as the degree of a prisoner's knowledge of a transaction was left a matter of doubt by the verdict of not guilty. The Jury, however, would take all these circumstances into consideration and give them weight for what they were worth.
The Jury retired, and after an absence of two hours returned into court, and required His Honor to read the evidence of Mr. Wentworth, Thomas Ashby, and Charles Castles; the foreman stating that the Jury differed as to whether the cattle were not dispersed between the Monday and Thursday following. His Honor read the evidence through, and the Jury again retired for half an hour, when they returned into the court and delivered a verdict of Guilty against John Deane; William Deane, Not Guilty.
Upon the verdict being declared, the mob in the court-house commenced clapping of hands, and evincing their joy at the verdict, when His honor ordered the constables to take the disturbers into custody, remarking on the shameless conduct of men who called themselves Englishmen in a court of justice.
William Deane was then discharged, and the Attorney-General prayed the judgment of the court on John Deane.
His Honor, in passing sentence, remarked that it was pitiable to see a young man, a native of the Colony, in the disgraceful situation in which he stood. He could not but regret, in common with every thinking man, the obloquy that was thrown on that body by the prisoner's conviction. He pitied the prisoner, because he had not received the benefit of a good example; had he had the advantage of the wise counsel of a good and virtuous father, as it had been represented that day he had had, he would not have stood in the disgraceful place he occupied; but as it was, the old man (his father) and his family would share the disgrace that must attach to his guilt. He had no discretion in the sentence he must pass upon him, which was, that he be transported from the Colony for the period of his natural life.