Benjamin Warby- Hearing
9 May 1836 The Sydney Herald
Law Intelligence. Supreme Court-Criminal Side, Thursday, May 5.
Before Mr. Justice Burton and a Military Jury Benjamin Warby was indicted for receiving cattle, knowing them to have been stolen, at Yass on the 16th of October last.
The information charged the offence variously, as having been stolen by William Warby, and also by some person to the Attorney General unknown.
The first witness in point of time was on approver, named William Bridge, a stock-keeper who had the charge of cattle, belonging severally to Messrs George Hill, William Roberts, and Andrew Badgery, and about three years ago after a short absence from his station, on his return, he missed several of the cattle, which he afterwards saw in William Warby's herd at Yass; and having mentioned the circumstance to William Warby, that person told him not to say anything about it, and he would remunerate him in money, tea, sugar, and tobacco, which he afterwards did.
Witness afterwards gave information to the Bench at Yass, and on his information William Warby was taken up, committed for trial by the Bench and eventually convicted before the Supreme Court and transported.
The next witness in succession was Mr. Cornelius O'Brien, who, in consequence of information received from various approvers during the months of August and September was instrumental in the prosecution of William Warby for cattle stealing.
During the examination of William Warby at the Police Office, at Yass witness received information that Benjamin Warby was collecting his brother's cattle together for the purpose of removing them, and accordingly, attended by the Police and two of the approvers he went to Warbys station, and there saw Benjamin Warby, who was busy collecting the cattle, and who, on witness appearing said, "I know what you are come for, and if there are any cattle that can be pointed out by the approvers you can take them away ;" at this time there were about 1,100 cattle collected in the yard, and fourteen or sixteen head were picked out by the approvers and driven away;
Benjamin Warby stated that he was going to send the cattle away, some to Sydney and some to Manaroo, but witness cautioned him against touching them as they were seized by the Crown, upon which, the prisoner said that he had taken legal advice on the subject, in consequence of which he had purchased his brothers cattle, wheat, farming utensils, and in fact all connected with the establishment for £2500 and had agreed to pay it in instalments, for which he had given Bills payable from three months to three years; and he was determined to maintain his claim to the cattle, which he expected were about 1,500 head.
Warby stated that he had complained to his brother of some of the cattle being claimed by witness and other persons, and he added that his brother had told him that he should be held harmless for all such as were claimed, and a deduction made to that amount from the purchase money.
Witness told the prisoner at the time that he considered he was acting very wrong in attempting to establish a contract between him and his brother; that he must be aware neither his friends nor the public would believe that a sale was made for any purpose but that of fraud ; prisoner, however stated the sale to be good, and continued in his determination of keeping the cattle, giving up any that might be claimed and identified; witness then told him that he must not remove any of the cattle, as he (witness) expected another approver there in a day or two who would be able to identify more of the cattle as belonging to other persons; witness then went away but did not return with the approver, nor take further steps until the month of January, when hearing that the prisoner had removed the cattle some up the country, and others to Sydney for sale; witness came to Sydney accompanied by the approvers Glover and Bridges, and gave in-formation of some of the stolen cattle being at Moore's farm, on the Liverpool Road which caused an enquiry, and Benjamin Warby who was then in Sydney, was taken into custody.
Mr George Hill stated, that he saw some cattle which Benjamin Warby offered for sale in a paddock near Grose farm, but did not think at the time that any of them belonged to him, until informed so by Glover and Bridges the stock-keepers, who went out and identified four as being severally the property of witness, and witness and his pinners, the cattle thus identified were differently branded; witness saw the prisoner, and told him that some of the cattle be-longed to witness and Mr. William Roberts ; but the prisoner refused at first to give them up stating that he had purchased the cattle from his brother, had the right to them; upon which witness applied at the Police Office and obtained a warrant, when the prisoner gave the cattle up; when the prisoner heard the approvers sworn at the Police Office, he said that he would give up any cattle that could be pointed out; witness knew the prisoner for many years and always considered him an honest, upright man; and on a full explanation of the circumstances, witness thought, had he been placed in a like situation, he would have acted the same as the prisoner had done, and not think it dishonest.
Robert Glover, an approver, and who admitted that he first gave the information in consequence of being himself charged with cattle-stealing spoke as to the identity of a cow which he had missed when a calf from Mr. Hill's herd three years ago, and which he now identified having Wm. Warby's brand on it, the reason he did not give information before, was for fear of getting a bad name; he said nothing about it till charged with cattle-stealing himself.
At the close of the prosecution, Mr Foster contended-that then was no case to go to the Jury that the whole transaction was a contract, which, however it might be the subject of an inquiry as to the claim of the Crown, could not in any possible way be construed into a guilty receiving. It might even amount to a fraudulent withholding, but after the prisoner's open avowal of his intention at the very outset of the business, it could not be criminal.
Mr. Plunket at considerable length remarked on the prevalence of cattle stealing, which required a check , and contended that the inquest which had decided that the sale was a fraudulent one, had in fact given their opinion of the nature of the act.
After being warned by the Magistrates, and knowing as the prisoner must have done, that the cattle were stolen, there was clear grounds for the charge, and the evidence in his opinion was sufficient to go to the Jury.
Mr Foster replied at some length.
His Honor said that he should certainly let the case go to the Jury, which he felt bound to do on two points; first, the prisoner knowing that his brother was accused and under examination for cattle-stealing, made an agreement with him to buy the cattle that were in dispute, and secondly at the very time that his brother was under examination on a charge of cattle stealing the prisoner was found collecting and driving away the cattle, as it would seem to defeat the necessary enquiry.
The prisoner was called on for his defence.
Mr. Francis Stephen, attorney, sworn, deposed, that in October last, the prisoner and his brother William called at witness' office, requiring professional advice as to whether a warrant being then out against William Warby, a Bill of Sale could be made, and would be considered valid between the brothers, and witness gave it as his opinion, that if a bona fide Bill of Sale was made, without reservation, at an equitable rate, the sale would be valid , on which, a Bill of Sale was drawn in witness' office, dated October 16, 1835, conveying the whole of William Warby's property, consisting of wheat, fencing, farming utensils, and cattle, to Benjamin Warby, for the sum of £2,500 which was paid in Bills, made payable in nearly equal sums from 3 months to 3 years ; witness considered the sale as a bona fide one, and had no doubt from circumstances that he was aware of, that the first bill was paid when it become due; there was no clause in the agreement which provided that a deduction should be made from the purchase money for any stolen cattle that the prisoner might be done out of; witness had always had a high opinion of the prisoner by whom he had frequently been professionally employed, but did not know much of William Warby.
Several other witnesses were called for the de- fence whose testimony was unimportant, and an affidavit (sworn before a Commissioner of the Court)/ of the Rev. Thomas Reddall, was put in by the consent of the Attorney General, which gave the prisoner a very high character. William Howe, Esq. of Gleenlee, Mr. Robert Jenkins, Mr. Thomas Rose, and the Rev. J. J. Therry, were severally called and spoke very highly of the prisoner's general character since his boyhood, and Mr. Foster closed his case.
In consequence of Mr. Francis Stephen in his examination, having stated that the evidence including a statement made by Warby to the Magistrates had not been correctly taken down.
Colonel Wilson was put into the box to explain what appeared vague.
His Honor summoned up at great length, and the Jury retired for about a quarter of an hour, and returned a verdict of Not Guilty.
The Attorney-General stated that he would take bail for the prisoner's appearance on a second charge, when called on; and the prisoner was discharged.
The Court was crowded all day, and the trial excited great interest, lasting from ten o'clock in the morning to six at night.