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3 corrections, most recently by peter-macinnis - Show corrections

1VL A T E at FU It N IS HI El) 1 Y (I i' R Reporters and Correspondents. SUPREIME COURT-CRIMINAL SIDE. W?EDNI:suAV, MA\Y "1. i_.3 lu-tbtbL.C ce. .15c.caiLa_(i'iLJ.l y.. Terence Level and James Friel, stood indicted for breaking and entering the dwelling house of     Honoria Daley, at Stoney Creek; in the district of   Williams River, puthi g her in bodily fear, and   taking threfi'o'i Sauttry monies,,.thtee gentrts of rull, uatl other articles, her property, on the 1Ith Januaivy li?st. " t It appeared from the evidence of the prosecutrix   that she is a widow, and lives at Stoney Creek; she was at home with her family on the night of the day laid in the indictment; between the hours of nine and ten o'clock the door was slapped in and two men entered with their faces blackened; they   asked who was in the bed-room, when prosecuttrrix told them her children were there; they then went into another room where a man employed by pro- secutrix as a stockman, and a schoolmaster employed     to teach her children, were sleeping, and ordered   them to get up, when they tied the stockman and schoolmaster together; there was also an aged man in the house, whom they tied with a piece of green hide to a little girl, the daughter of the prosecutrix whom they also secured to another of her daugh-   ters, all the persons in the house were then secured   two and two. They told prosecutrix that if .shi had aniy ionesv ill tile lhouose it woudhi 11u: lch better with her if lshe gave it ul ; the men who enteredt her house on that occ'asion were about the size anti enpl''er. al)ppeIarance of the prisoners, but she could nlt jundllrtake to say they were the men. After tile)' lhad tied themn, they forced thetl into the dairy, where one man airmed with ai pistol was left to guard theml, whilst the other two went into her bed room, and forcing open her box took therefroni £8 in notes, a sovereign, and somte silver; after which, they searched the pockets of the proseclutrix, froml which they took fifteen shillings, also threeshullings and sixpence frion t lip1olickets of the stoickmllan. T'hey ordered the mnan with the 'pistol to remain over them half an hlour, andtl the other two lilen went at, ay ;" there was anl infant, a gratldaughliter of the proslecultrix, screaming ona the floor during the tiie they were robbing the louse : they liostd the girl beltre they departed, in order that she might take it from the grounotl they Cere about half an hour in the libilse. After their departure; Elizabeth l).d'y, daughter of the Ilproscecltrix, askedl her nlto thetr if slthe did not knowV the prisoner Level, observilng, that lshe thought lie wts a' stockiiillal to M1r' IltHoliles, a Settler, who resided in the nei.ih h·rlllhillld proscl trix was aware at the timt e ihat 'Mr iloliocs liai it stocklntii of thit name; she kilt w the prisolner Level, as le lived at the distance of ab ilt thiree nliles from her ihouse with his nw te'; she lhatd hadltl frequent oppolllrtunilities ofi seeing hli, i hle always lpaLssed by her hollse inl goiing to, or from his llttster's farlll; she coulild only speauk hlowever to the size and leight of the llllti, as when she lattelltetl to look lat thlella they Ipointed ai pistol ait thmci and colnlmanded them to turlln their eyes away ; their faces were black, d, andl the tall ma11n1 hald his face covered with it cap' the lining drawn over his fchee, In answel' to at question fiom the prisoner Level, I'rosecuCiix reite'rated that she colld inot Swear to Iiln as his face was blaeklenedl, iand also that sheii had known hinm well at \Villiams' ltiver for a long tille l'revitosly to the rbllbery. - Cross-examllinedl by Air Foster for tile prisoner Level. The door was usually' fsteiied with Ia latchl couldi not say . lhetiler Ollthalt loccasion, it had hemn Jcfta.little olpen or .not, it rlequirled at ally..tile a pildh to ollpt'n it; pIrosc.tiirix was mlluclh llhai'liled, and fromll the anllpltpearance of their faices thought they welre blacktellows; admnitted that she could Ilave the slightest idea of the lien, only that one was a tall ltian, alnd the othlier two lmen welre shlort. Examliinted by the Coturt. The door wats mttde of cedtrl' the mieans Iuailly talken to ecurel' it for the night, way by pultting at gilalt stick agailnst it on the in-ilde; tite stick was noil it. it"ai?t it on tilhe preselnt iocelsil when ipushed i ii; liad been in the mhoue about two monthls, bfure the rubbery.

Sri II,- r litLre' sutbmiliittd thait tlue' case nlutl?: 'ehll, in.h-nuh au hv the hidence of the proscentlix tIbwi ha1i tieem no legal breaking, so as to s?ustaii Ihe Ili ,lt li inent. 1-'ir bi rIy for ilTe prosecution contended, tat;i it was not ?iessay that doorlll should lie lochted Sill' i l ?t'i. liiatenelldl , sio as to ,ll, ititute it breaking; it twas sihor n that the door was sio sec.,ril ias to ri rii i po )l to oipenl it; the remolivinlg lof this fastei ing, lie held to be a breaking, within the coln ip hie-ion of i t.( liw. 'I lie .hicl ustice concurred with the obetlrioln takes: by lir Foster. It was cli rly not it breaking; tin lit ,ise!utri.tix dill lnot talke upion herself to say wlhtetller tlie dloor. mliight not have been lelt open ior nIot; the ordinary faIsten ng was by ltmeants l f a stick which was lnot - iapplied-otlti i occasionl, of-the rh lry; he would thierefore diriect t e jurt to acluiit thle. prisiines on the indict lent, and they were reilliniid'il acicordingly in order to alliiid the Crowii l, w I lliticlrs an opiiitlliilty oif drawing up in in dittintent fior stealing in a dwelling house aburs the v;lue of '., Th' y were glin arraigned under that indictment, aitl the cvihdenice of the plirosaentrix on the former ,i.,e who was again sworn being merely read over, the ccase prteedethd. Elizablletl lDaley, daughter of the prosecutrix, iiiieenihered thie night of the rolbbery; recognizedl T'l'renilc Level oill tlht occ;lsiton as one of the men- ; hadl known hina befoliGre; Level then spoke to the stik-k'eepilr t iui tliiinhtl lshe. knew his voice, though al little disguisedi , tolld het'r lllotller s ifter they were g lie ; woiuld lnot swer pos lie ly, o ily thought so; never thoghlt it wasi n any other piersouii ; has no reason for tlhikig he was not the manlli ; was miiich frightened onil the occasion. The evidlence of the setveial piersonl., in the hbet at the tiuie cirrl'obo aI;td the te~tlilioy of the. proscutri.x, and eltab lislhed the identity of the pi iiiiners. The testimony of these wtitlesseus was suceceded by that of ol approver named Patrick Dalliuni)y, assigsneil to M!r Illidmes (thlie nm?ster of the prisomeors) lwho had abstiondtedl frliiIn the service iof his imaster,nll dler Ipretence of going to the lospital, but haid fdllen inll swithl the in isoners: on the road together with a' man nlllcl DI)lonnally, wihen the design of robbing the ,rosecutrlix ?was foiiiiiil, and suhseqlUetlv carriell' into execultion. This witness stltei5l being known ito the prie'.ciutri andi inlmailtes of the house, lie was linot sufftredl to go in will thllet, but ?ia.s posted oultside, near the stockyard, withi it loaded muiiiisket iltnler directions to shoot any peirsou who slhouild attellllt to ibreak out of the ihouse. If any one ihal so inildt hisi escape they wouldlhave taken his twitncnss) liife. Donnelily lie believed did not go in %Viui h them, ibut rethreild to iit to the stock-r dii; the pri soner Lev.el had a piistol wiith was also lloadedil ; they got soiiie lruali fio lithe ihouse of thie llproseit'iix, i-unt witness got tilite o(if thre moneil; tii, tirisoiin Freil uindertookl in give hint his portion of t lit'sipoil bult lie never received any of it; they pr)Iocle'lll laifter the ihrllbery to the creek, where they had lelt their" cliothes in order to disguise themselv s r'' thet' the tiaiiasac'in, anld alfter-dressitg thell ?lves in *t ir uinat.l idre.s,-they iproceteded t tlihe house ct ea tn ,i1u niniuilt i ichiel Hlogan, who Ii. ell in the i,hl)f'-iliol lits, where tIhey had soml e tiat; Lev. I left lthn to go home, aits he had to umilk in the e iniorinine. andl dlii not wish Ithen to miss him friuu Sthe p'lai' ; theyv left the pistil atrl - tiinsket at I ligali's; ir chIanl Dut nelly only, went ill, witnles eI'niihainlmg iiatside; iitu-ss siilisequeinthl gae hiil ' stIi ip to i1' Wigaitlon the .\l'agistlte oif Duntgoa, ;aiiil ilnatde tthe stateruileat against the pritsutler; I )onuelly siiulae his escale aniid is iinolt apiirtlheid. Tl'he overseier iti the finm to whouilt I he plrisoner l-appiliedl for a pasw to go t the hospital with it - had le, tild himl he had no ii ct'l"ioii to go the, e as lie cotidl give hinm aiii uctdy %si iltt leaving lthe farm; ihlt said witness withi uchli ? iiiete, ' 1 told himii I i iniI fancy going to the huio h liitl, and thenlll I toiok iicthe hIls."' T'lis witicess tuinilel weuit it strict cross t exam ii aiotin by 11"r Ioiiter, in orlders to affect li, ciredililits y; witneuss aiiittedl that he once had - ilull .icuit io t againist i(;iougItoir the li- tseer, t ir : calih t itc -tvaliie, on which occasion the prisuoner n Level Iithred to back his eiide?ce ill rel'll i to let rild of the overlteerl as was tyraitnical to tile lmen, libut when the matter wats urged upon hlim l; e re tiisedil ;it- ies niever -hal ally feelilgs -of irevenige iatdilst himl on this acoLtint. Witniess also admiti ltedl lihe haIld ehiaved three otliher imen with the robi y Y ti .1i Dil)lley's house, anid iiade a statiiement to tllhat ilTi'et. to .l'i" l ihilies, which wais alilnt to be tikteI ii ldow il writiiK, whi-n toCi i?se the I-xpresi'ot?s of the 'vitRns, hie lropped the yarn; " I dhid nt 'iiid teilli it," said t lite-s," " bhilt that's not ri sweariih it,"y miotive' ftir liharging these men i was to get out of V. iolties' :hanids as well as I could, Shlie ha t i tiid til, th:t it I swoire that 'l''il ence Levcl had notihing to di with it lie wou'ld protect it aiauinist all (tiouile, as Level' was a uit hill indi iaithiful sl alint toi him aid the ilitly a lliln wlhii h - cool I diepeund to lmi Ii anid take cll i of hi- hird il;" tin ilily hearil this cLitinversatioi as they ws-i C - .loc]i I[iarioiti Hilmies'litIihouseeuithe occasion. Isaac Shawl , at Ithat tihle a cinstali!e at \Wil li.uns' (liver, was exiami iiledl as to finding the capii, whliich haul lite iiworsinii biy t he prisoulntr Levelr. aiLnd which smelt strotlngly oif rlni,. IiI his lcroiili-exatlill tli t iih stated, ih ia lie hal kiiown the pisoiner Level ab ,it eighteen months nitd that dUl"ng that tinehe lit had burni a high tch.ii acter inl tie district, miiung all ctasses, for giMJI coinduict 'hlue iase for the lllose riutlitii hiuiliig ieen clised, the ptli soierit'clled the 1tiT-i iiO ii ttarsses Ill iTTlrilTIf'itiee \Villiam lIti ins holds a 'icket-of Lieave fot Wil i liati' liire't, and i sttockniani to aI petsill ii.iui-d ,ii 'liiiT lki'r. -li'lhofilject'of cralli ig this witi ess wi'as to coni tradiiet tlhe stattiiitlt of the ;allillruem I)t ellnllity, andl iherlly ubiject liiseviiieut.s to iiiie II diility, iasii to his haiing ilet the IIrisou:ir Level itin the ii.t iii his COimpntiy oR tlie day pir, viouslv t ix the ihhuery, which the wvities-s h'denied. :.i lib Swas iiugiht to be i estblishld ly- the evidenuce of i the-o-i-iiei?i-of MAI I hlmlues' fa. in. Johini (i.ighlitil, whil statell, that onu the night the i roblii- ls of' M~ilrus Dl)hey was said to hilave b elie, co lnuniiiitied?it, he sict to tre huit of the prisiIiOUu er i levl, mtl hail snli?e i'iinvri'i itliiti h hi Ilu iiii l it 'u?leli"'s stickmlit;il it wails tha abibiut ilarte paiilst h iL'chi ck,,ie khtrlOw the tim is )lie hat l iLii utkid iat his i "lsch; ilhins s?hli t lia?'u Ill tit iht ; tht ni his ci' ciiistldiine hail snot- fir i'tlicii kil iimiti ill pt lr , lsiil., leri' ctunlt, Iewhii retlltd tiledhi? inll thill iiiiit,. i' 'Thl, siuss tIihiniis statetilt that lie wa.~ an th hit of theL' pi isioi(inre' I Ol thi) e ni-ht il qmii stioiin, whtierl, IX ite slept lul iuhlht ; the jir'siilliT wenit tm hitl with ShimlI alul he fliUtmid hii u -il hmel iext iiimiirie. lleiinwctiiiose.ia?ni, ned by)M ur Thin'y, hliuw,-ever hiu cotlid lot nilidelai'ke iiiss air thatth rliiisoier i"as i i r be ill iglhtl, ii i.? tin s'hicli lie evidemntly Riilea. l vomlred l cirlllde; iior collhl lul .state clearly l ,, t lielr She we;n t to belld viah hiim itt lnight io iit, lite kniw lid \le was abauiit tilat c hlite Ill atl y ?allt ulp latel Ilgl'h li hldtted ;t sihiip of greent hides o'f sevemi h.eet long yll after time o'veCrsee left til-hitit i witni.ess ?lcl soiiutnly to all night, havihng .letll for fourteen pieious nligihtsi d ii the open air in thle ni ush. Micliatel Hogan wal t exmiunheil onl the iaar tui telti , piioners; deniid hiving .ten Fredl ani Dnlly Shuimty; thity had left nio he a-rmis at his house on any oci)sinull, llill. im Jihii Hms-hell, ()svrm-si'cr to Mir. T. WVynter, r'e-' in mtembiered hia'hiiug serum tihe riusoner FIiecl tli" time o list timet on the 22nuiilJ himv, lit the llanliig rive1r; ht lie ht emgageil hiiiii-lt as a hliiioter to a hair ail I' Sawyers. lThe Pliso nn?er s?lubmiitte_ that thle t?vuiete pr elliroet ulcoul out halive lbee ai tihe ilacu desciiL Bed R its the scene of the ruiiblerv omi the l th iini d ie ilit th the alihnilng |iver inl the'2 -miid, a jinii-nu, y oif foiuir S aiys., Tholai s \Vl, al Colistaihle, of v\ illiua'ils litisir, l uwi I Iowievet', lhtll the distaule ciiohil be , t perfonirmed with iiiaeut ill tlo days. This 'hllstd tie ease, Ilis Htin.r sutnntued iui the evidemicma uminiutely, iatnd pair the case to the Jlimy, who retuilned ii ser l dict tif &tlillty. - ' 'lthe plisr?tlnl'ls slien called upiOnI to sLay ilshy" jlidgelomen if elh ile tishould notl bte passedl upil Ithemi Sintil xl fitclltn i\vaurdeld lccording to l've t i-atlaii tltitinmh iiuicete ii thie mtost solelim nll u er i ,llier whin his i-I ncoi, i'frer aaiiihressing Silliti obsetr attioni to themi out the emiomimity of thi otrt lt'oce ohf' whiih Slltey had been ciuviietem. anil exlllpressiig imiiiself S?i lltisied isl t ile justice of thlie vtru dict, froLui thle ivi dence it which haul beemi adinhicmed, itsseil the 5enitittce lofDt, iatti, exhoinLhog thietim to pIiaitlre thitumiselves tLi i imect thheii ?lal"er, ;lull holding out to thelti Ito hopie of miuinry. • Jo/hn /atthets, an tiged oman, a- chttier -itt the r ntighboutrlhoiod of Stoliiiirljuy I'Cr'ek, lulluld Geurge ittrald indctel f' saling nil a ox vihlue .Lii, the riohtiltS'rty oif Ihi-nry hiiint fu? itniiiitiirr'v, on the 12ih 1, i'jveloin'r last. A-- scond comUit chag'gdit II p ii i soners ith tlimughterl e th b-aist witlh intent to h stail the rtrczase. e It iuhiiniirid front the evideturo oi" the prostecuttir t, that he oil sed the bullhck hi qiestion, alUtI oicUtther f hehlhing ti unothuer hirSln, iaud sent his brother n it seatrcht of thetiu, who tracilued them vlui'4ht-cr?a?,k e hi the iri-ectiht mf tie huiuse of tht' hrilso.ner Mait ithei,\;. l'rostentor nttver .saw the iihuiik - aftt'' e wi'ds--aus? the hide un the iihosstlutg day, ,wlich hald beeli fuhlito it tile t n itlice of gliout 4 mile bc

iow the prnenl*r' likine--it i.-f t plni.ti n hetap of earth, tludr ai nte thallt had bee In alo lhwi; thl hli'e had bei ncut in two, and the iown hall: r l t' ,ii( . : i h'i ' It. i tillt flt 'lp i t( .t l. tllres, a st"lc T warrani t as is (taidtlle, and his hnusp was ?seuarched hut to llrat was tillld, A si e of green hit roipe was ltillrl whiclh hald t 'llice o. Lente harin en n-edici o-ver night inh sltagiprieagI t ulll icli; thll'e wa:. blod d al u hair Uo itof' browt nl and whit. colinn1., the saume as thie bullock which was iilnSi.iu-tlhis rIIpe wa.<. funinnd in a out ioutse atlji.ning the rieshllenC( oI M'itt' Cws9 It p. pllIred tol have I'ein recently round a lunti' t wtas covered witIh chlarlco;al--whcen questiionaeS, i t this rope Matthllews said h? klnew nothting a tl it, ibut uadittei afterwards that it was his, i nid rut -he-had hall it four yvears-prosreetlor hd brought the biillicitl in question fifrofm11rogur.'ng oughte ilpurpo e of b eacking him in to work--it was good tlnet and lit to kill-a rillnlit log at the distance of about a quarter uf a o file firo' iMatthfews' hiuse hIilne the mark of a rope around it, which was found t, correspoftt withl the size alnd appeiariinces fi the irope ound on atthews' tw enises-a. sort of gl. - lows is usually eructed ilr the fIt ll'lurpoe of slau.glhter. ing cattle, but n,.thlliug of this klnd appeared on the pIrcnises of Matthews-,Matthews was undestood to have t great tmany c.ttle of his own. In the situation in which thli ropje was founnd, it was possi. ile for a person to take it flioni, and retun nit to tl?t dlace, without the knowledge of Matthews, alter having slaughtered a Inoulck w ]hich might lrtive t;aken place without hiis kiowleege. .1~siai inil, the bi othler of the lposecutor stated tha: ,he ha:l driven the cattle drtI ing the day; laid in the iidictment, ind left theml togetheri near tlhe Iiinlse of his brother, lift tllissedl the bullock in ique tion in ;o'illt Ian hour altewaruds-ulnder the impressllln that it hald been driven 'wf iwy he went in search of it, and tracked it near the p1 isouer's lnuse --on qluetioning hin if lie had Lseen two jheldof caitt!e stray, hIe admitted that lie rhail seen oii alite. longing to it person auitlned Fisher, which halud cross el the cri e' and gonel towards his IIhouse-the other fitianifg the thullc p in question, had inot crossed the creek, but hadl proceeded downwardst front tihe Ihouse, 'Witness oil procettlifg in thalt diiretion ob sevrtel a track whichl had Ibeen recently covered with s:,n I, i ppirently fior thie purposle of cincealing it-folliWttg this partially obliterated track it led iiit augain into the. creek, iwher Le le dlisevered lthe I insidte of a beast which had been recen ly killed, and about tile place a gr eat quantity ift bl lollo-farutler dlown the creekli he flI nd also a hil lewIrlic h a dog was ettlinf , but could not say it was .llatthews'd, as he did ( nt kuow lhis ldos-¶-gave infrl'utitufi of tli., d scovery to a constiable of lthe di.truict, who fio1nd tlhe hide in the place desclibed, the brand if wlhich hatd beln dlestroyedl. Fr:?l, thie evidltnce of the.ei, itniPsscs it lppll'ared thliat a sort of pIutne'.rslhip existed b,'tween thens, antil tlhat the hit.ast laild in the indictniiut, as the propltrtylv of Ihety ilint wsas thet j-ini properlit of bothll. I)it this lrlund thill CoIiit held that the in. dictntent fiimed, and diicited the .hry to i uquit ihe pi, isoners, who weret t lin remladed ofn llothei t iLa. dictment, to be ii tituted itgainust theltm.