Sydney Monitor (NSW : 1828 - 1838), Saturday 7 May 1836, page 2


MATTER FURNISHED BY Reporters and Correspondents. SUPREME COURT-CRIMINAL SIDE. WEDNESDAY, MAY 4. Before the Chief Justice and a Civil Jury 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, putting her in bodily fear, and taking therefrom sundry monies, three quarts of rum, and other articles, her property, on the 19th January last. 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 prosecutrix 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 she had any money in the house it would be much better with her if she gave it up; the men who entered her house on that occasion were about the size and general appearance of the prisoners, but she could not undertake to say they were the men. After they had tied them, they forced them into the dairy, where one man armed with a pistol was left to guard them, whilst the other two went into her bed-room, and forcing open her box took therefrom £8 in notes, a sovereign, and some silver; after which, they searched the pockets of the prosecutrix, from which they took fifteen shillings, also three shillings and sixpence from the pockets of the stockman. They ordered the man with the 'pistol to remain over them half an hour, and the other two men went away ;" there was an infant, a grandaughter of the prosecutrix, screaming on the floor during the time they were robbing the house: they loosed the girl before they departed, in order that she might take it from the ground they were about half an hour in the house. After their departure; Elizabeth Daley, daughter of the prosecutrix, asked her mo-ther if she did not know the prisoner Level, observing, that she thought he was a stockman to Mr, Holmes, a Settler, who resided in the neigh-bourhood; prosecutrix was aware at the time that Mr Holmes had a stockman of that name; she know the prisoner Level, as he lived at the distance of about three miles from her house with his master; she had had frequent opportunities of seeing him, as he always passed by her house in going to, or from his master's farm; she could only speak however to the size and height of the man, as when she attempted to look at them they pointed at pistol at them and commanded them to turn their eyes away; their faces were blacked, and the tall man had his face covered with a cap the lining drawn over his face, In answer to at question from the prisoner Level, prosecutrix reiterated that she could not swear to him as his face was blackened, and also that she had known him well at Williams' River for a long time previously to the robbery. Cross-examined by Mr Foster for the prisoner Level. The door was usually fastened with a latch; could not say whether on that occasion, it had been left a little open or not, it required at any time a push to open it; prosecutrix was much alarmed, and from the appearance of their faces thought they were blackfellows; admitted that she could have the slightest idea of the men, only that one was a tall man, and the other two men were short. Examined by the Court. The door was made of cedar the means usually taken to secure it for the night, way by putting a great stick against it on the inside; the stick was not against it on the present occasion when pushed in; had been in the house about two months, before the robbery.

Mr Foster here submitted, that the case must fail, in as much as by the evidence of the prosecutrix there had been no legal breaking, so as to sustain the indictment. Mr Tharry for the prosecution contended, that it was not necessary that door should be locked or otherwise fastened, sa as to constitute a breaking; it was shown that the door was so secured as to require a push to open it; the removing of this fastening, be held to be a breaking, within the com-prehension of the law. The Chief Justice concurred with the objection taken by Mr Foster. It was clearly not a breaking; the prosecutrix did not take upon herself to say whether the door might not have been left open or not; the ordinary fastening was by means of a stick which was not applied on the occasion of the robbery; he would therefore direct the jury to acquit the prisoners on the indictment, and they were remanded accordingly in order to afford the Crown Law Officers an opportunity of drawing up an in-dictment for stealing in a dwelling house above the value of £5. They were again arraigned under that indictment, and the evidence of the prosecutrix on the former case who was again sworn being merely read over, the case proceeded. Elizabeth Daley, daughter of the prosecutrix, remembered the night of the robbery; recognized Terence Level on that occasion as one of the men; had known him before; Level then spoke to the storekeeper and thought she knew his voice, though a little disguised, told her mother so after they were gone; would not swear positively, only thought so; never thought it was any other person; has no reason for thinking he was not the man; was much frightened on the occasion. The evidence of the several persons in the hut at the time corrobo-rated the testimony of the prosecutrix, and estab-lished the identity of the prisoners. The testimony of these witnesses was succeeded by that of an approver named Patrick Dalhunty, assigned to Mr Holmes (the master of the prisoners) who had absconded from the service of his master, under pretence of going to the hospital, but had fallen in with the prisoners on the road together with a man named Donnally, when the design of robbing the prosecutrix was formed, and subsequently carried into execution. This witness stated being known to the prosecutrix and inmates of the house, he was not suffered to go in will them, but was posted outside, near the stockyard, with it loaded musket under directions to shoot any person who should attempt to break out of the house. If any one had so made his escape they would have taken his witness life. Donnelly he believed did not go in with them, but returned to him to the stock-yard; the pri-soner Level had a pistol with was also loaded; they got some rum from the house of the prosecutrix but witness got none of the money; the prisoner Freil undertook to give him his portion of the spoils but he never received any of it; they proceeded after the robbery to the creek, where they had left their clothes in order to disguise themselves for the transaction, and after dressing themselves in their usual dress, they proceeded to the house of a man named Michael Hogan, who lived in the half-moon flats, where they had some tea; LeveI left them to go home, as he had to milk in the morning and did not wish then to miss him from the place; they left the pistol and musket at Hogan's ; Friel and Donnelly only, went in, witness remaining outside; witness subsequently gave him-self up to Mr Wighton the Magistrate of Dungog, and made the statement against the prisoner; Donnelly made his escape and is not apprehended. The overseer of the farm to whom the prisoner applied for a pass to go to the hospital with a bad leg, told him he had no occasion to go there as he could give him a remedy without leaving the farm; but said witness with much naivete, "I told him I would fancy going to the hospital, and then I took the bush." The witness underwent a strict cross-examination by Mt Foster, in order to affect his credibility ; witness admitted that he once had made an accusation against Goughton the overseer, for cattle stealing, on which occasion the prisoner Level offered to back his evidence in order to get rid of the overseer as was tyrannical to the men, but when the matter was urged upon him he re-fused; witness never had any feelings of revenge against him on this account. Witness also admitted he had charged three other men with the robdery of Mrs Dailey's house, and made a statement to that effect to Mr Holmes, which was about to be taken down in writing, when to use the expression of the witness, he dropped the yarn; " I did not mind telling it," said witness, "but that's not swearing it," my motive for charging these men was to get out of Mr Holmes' hands as well as I could, as he had told me that if I swore that Terence Level had nothing to do with it he would protect me against all trouble, as Level was a useful and faithful servant to him and the only man on whom he could depend to milk and take care of his herd; nobody heard this conversation as they were locked in a room in Holmes' house on the occasion. Isaac Shawl, at that time a constable at Williams' River, was examined as to finding the cap, which had been worn by the prisoner Level, and which smelt strongly of rum. In his cross-examination he stated, that he had known the prisoner Level about eighteen months and that during that time he had born a high character in the district, among all classes, for good conduct. The case for the prose-cution having been closed, the prisoner called the following witnesses in their defence. William Robbins holds a Ticket-of Leave for Wil-liams' River, and is a stockman to a person named John Tucker. The object of calling this witness was to contradict the statement of the approver Dellamanty, and thereby subject his evidence to incre-dibility, as to his having met the prisoner Level on the road in his company on the day previously to the robbery, which the witness denied. An alibi was sought to be established by the evidence of the overseer of Mr Holmers' farm. John Gaughton, who stated, that on the night the robbery of Mrs Dayley was said to have been committed, he when to the hut of the prisoner Level, and had some conversation with him and Tucker's stockman; it was about a quarter past 8 o'clock. He knew the time as he had looked at his watch; Robins slept there all that night; this cir-cumstance had not before been known to the pri-soner's counsel, who recalled Robins on that point. The witness Robins stated that he was at the hut of the prisoner Level on the night in question, where he slept all night; the prisoner went to bed with him, and he found him in bed next morning. Being cross examined by Mr. Therry, however he could not undertake to swear that the prisoner was in bed all night, a question which he evidently endea-voured to evade; nor could he state clearly whether he went to bed with him at night or not, he knew he was about the place and sat up late, having platted a whip of green hides of seven feet long after the overseer left the hut; witness slept soundly all night, having slept for fourteen previous nights in the open air in the bush. Michael Hogan was examined on the part of the prisoners; denied having seen the Freel and Donnelly on the night of Daley's robbery as set forth by De-hunty; they had left fire arms at his house on any occasion. John Bushell, Overseer to Mr. T Wynter, re-member having seen the prisoner Freel for the first time on the 22nd July at Manning river; he had engaged himself as a labourer to a pair of Sawyers. The prisoner submitted that the evidence provided he could not have been at the place described as the scene of the robbery on the 19th and be at the Manning River on the 2 nd, a journey of four days. Thomas Williams, a Constable, of William's River, swore however, that the distance could be performed with ease in two days. This closed the case, His Honor summed up the evidence minutely and put the case to the Jury, who returned a ver-dict of Guilty. The prisoners when called upon to say why judgement of death should not be passed upon them and execution awarded according to law, asseve-rated their innocence in the most solemn manner, when his Honor, after addressing some observations to them on the enormity of the offence of which they had been convicted and expressing himself sa-tisfied as to the justice of the verdict, from the evi-dence which had been adduced, passed the sentence of Death, exhorting them to prepare themselves to meet their maker, and holding out to them no hope of mercy. John Matthews, an aged man, a settler in the neighbourhoiod of Stonquarry Creek, 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 In.si 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.