Warby - Fourteen Years Transportation to a Penal Settlement

19 February 1836 The Australian (Sydney)

Supreme Court  (Criminal Side.) Monday, before Mr. Justice Dowling and a Civil Jury.

William Warby, a native of the Colony, was in indicted for receiving at, Bulbar Creek, from one Robert Beaver, on the 15th November, 1831, 21 oxen, 20 cows, 10 heifers, and 10 calves, the property of Mr. Henry O'Brien knowing the same to have been stolen.

Mr. R. Therry applied to the Court on the part of the prisoner, for the postponement of the trial, on the grounds that six material witnesses who had been subpaened, had not arrived, and that they resided two hundred and fifty miles from Sydney.

The Solicitor General opposed, the application, on the grounds of insufficiency, the witnesses for the prosecution residing in the same district, and they having all arrived.

Mr. Justice Dowling rejected the application, on the grounds of informality in the affidavit, it not stating who served the subpenas on the witnesses, who tendered their expenses, or where they were last seen.

The facts were as follows:-

In the latter part of, 1835, a man named Glover, in the. employ of Messrs. Hill and Roberts, at the Murrumbidgee, was apprehended on a charge of cattle stealing, who to save himself, gave information against several receivers in the district.

From his evidence, and that of a person named Cooper, it appeared that about five years ago one Robert Beaver, an overseer and stockman to Messrs. O'Brien, at Yass, applied to Glover to lend him a hand in collecting, his cattle as he expected Mr. O'Brien to visit the station when in the bush, Glover observed a calf with Warby's brand, sucking a cow with Mr OBrien's;

Glover pointed out the circumstances to Beaver, who exclaimed, "I am glad you saw it, or it would have been a bowl out."

They then procured a dog from the station, and singling out the calf, they succeeded in catching it, when Beaver got off his horse, and "pittied" it; they then skinned it, and destroyed the brand marks, after which, they returned to the stock yard, and drafted twenty of O'Brien's calves from their mothers;

they then-drove them about ten miles, to Warby's station, where they were received by Warrby without making any remark;

Glover then returned to his station, and the next morning returned to Mr. O'Brien's, to render further assistance to Beaver; on his arrival he saw a piece of blue cloth lying in the hut, and upon asking Beaver how he came by it, he replied that it would not do to let Warby have the calves for nothing.

In consequence of this information search was made among Warby's cattle, when two cows were found, and identified by Glover to be two of those he had driven to Warby's they much resembled Mr. O'Brien's cattle, but be would not undertake to swear to them positively.

When apprehended, Warby said that one of the cows was only rising three years old, consequently could not have been stolen five years ago; but upon examining her by competent judges, it turned out that she was aged;

 Glover said he received no payment for assisting Beaver; he only did it as a favor, and because he thought Beaver would have obliged him in the same manner;

he would have given the information before had he been asked, and he was withheld by fear from coming forward voluntarily, as one man had been burned, and another had his teeth knocked out in that district, for giving information;

Beaver and a brother in law of the prisoner, named, Middleton, were apprehended, but made their escape. Several witnesses were called for the, defence, but from their evident prevariction their testimony had no weight with the jury.

Mr. Rose gave the prisoner a character for honesty, and Mr. O'Brien said he always considered him such until the present trans-action.

The jury after a short consultation returned a verdict of GUILTY, and the Judge in passing sentence on the prisoner, observed that, there were seven other charges against him, on each of which he must have been found guilty according to the depositions.

Fourteen years transportation to a penal Settlement.

From the easy circumstances of the prisoner, this case excited great interest, and the court was crowded throughout the trial with his friends and relatives.