Walter Butler (c.1807-1870)- the life of a 'currency' lad born in the colony of NSW: Walter Butler- Ch. 6: Court Case re Horse Stealing Charge in 1840

In December 1839, Walter was charged with the theft of a horse sixteen months previously. His counsel fought the allegations vigorously with the result that Walter was found Not Guilty.

As reported in The Sydney Monitor Wed 11 Dec 1839 p2

POLICE COURT

Before Mr Windeyer, and Colonel Shadforth

WALTER BUTLER, a Publican, was charged with Horse Stealing. William Meredith, of Liverpool, Chief Constable, deposed to searching the premises of prisoner under warrant. He did not find the Mare the first time, but found her on a second search at Mr Drummond’s. He had just seen the Mare in the Police Yard, she was the same which Mr Williams brought down to Sydney. He had frequently sent he Prisoner on the mare openly, not at all concealed. William Drummond of Liverpool, deposed, I know Walter Butler. I bought a mare of him about three months ago. I have a receipt for her; which I now produce. When I bought the mare I could not distinguish any mark on her; she had a foal, the mare I have just seen in the Police Yard, is the same. Mrs Thompson deposed, a short time after my husband’s death, two years ago, I lost the mare now in the year. I am quite sure the prisoner is not his brother. Prisoner in defence, I have written to my brother at Port Phillip, who can prove I bought the mare about two years ago in the following way. I went up the country to keep an Inn. A person of the name William Kimsby, who owed me money, told me he had a mare for sale, and wished me to take her, and give him credit for the amount, he asked me ₤20. She was then in the bush; I went and looked at her, and told him to send her up to me, which he did; I never heard anything more about it till a search warrant came to search my premises. I had then had her about twelve months, and had sold her. The receipt now produced is the one I gave when I bought her of Kimsby. I had not the slightest idea the mare was stolen- Committed. Bail himself in ₤100, and two sureties of ₤50 each.

The Sydney Herald, Wed 11 Dec 1839 p2 reported a quite different set of circumstances:

DOMESTIC INTELLIGENCE

HORSE STEALING

On Monday a man named Walter Butler who formerly kept a public-house in Sydney, and afterwards resided at Cabramatta, was committed to take his trial for horse stealing under the following circumstances. About two years since, Mrs Thompson of Cumberland-street had a mare running on the farm of a Mr McLeod near Liverpool; the animal strayed from that place and was shortly afterwards seen on the run of Mr Gurner a short distance from where the prisoner resided. About the same time Butler visited Sydney, and calling on Mrs Thompson told her that her mare had strayed to Mr Gurner’s run, and promised that he would drive her in at Mrs Thompson’s request. Nothing more was heard of the animal until about nine months since when a quarrel took place between Butler and a man named McAlister, who then declared that he had seen Butler drive away the mare. He communicated this to Mrs Thompson who applied for a search warrant, which was placed in the hand of Meredith the chief constable of Liverpool. The mare was found in a paddock of the prisoners but was not secured as the brands did not answer the description in the warrant. Some months elapsed before the identity could be proved which was done by McLeod and some of his servants. Butler was apprehended, and the mare, which he had in the interim sold to a settler, was secured. The prisoner in defence alleged he purchased the animal and said he could being proof of it.

‘Sydney Gazette’ Thursday 12 December 1839 (p2):

Horse Stealing- A young man named Walter Butler, a native of the colony, was brought before Mr Windeyer and Mr Brown, on Monday last, on a charge of horse stealing. He stated in his defence, that he had purchased the horse in question, but was not then in a condition to prove it. He was fully committed to take his trial, but was allowed bail, himself in ₤100, and two sureties in ₤50 each.

The case came to Court in February 1840. The case was reported briefly in the 'Sydney Monitor', and in more detail in the ‘Sydney Gazette’ and reveals some further information about those missing years.

'Sydney Monitor' Wed 5 Feb 1840 p2:
Walter Butler, was indicted for stealing at Mary Vale, near Liverpool, on the 8th July 1838, one mare, value £20, and one filly, value £20, the property of Elizabeth Thompson. Not Guilty- discharged.

‘Sydney Gazette’ Tuesday 4 February 1840 page2:

Supreme Court

(Criminal Side)

Saturday February 1, 1840

(Before His Honor Mr Justice Willis)

Walter Butler was put to the bar; he was indicted with having on the 8^th July 1839 (or 1838?), stolen one mare, value £20, and one filly value £20, at Maryville, about one mile and a half from Liverpool, the property of Elizabeth Thompson, residing in Sydney.

Elizabeth Thompson, being sworn, deposed that she knew the prisoner; she had seen him in her house a short time after her husband’s death in the year 1837; he came to the house and asked her if she had lost a mare, which he described. She said she had, and on his saying that he had seen it, she said if he could get it for her, she would reward him; he then said that if the mare was hers, he would bring it to her the (f?) at time he was coming to Sydney; the mare that she had lost was branded a T T, which were her son’s initials. She never saw the mare but once, before it was recovered, and could not swear it was the same.

Cross-examined by Mr Foster- When she saw the mare the last time the brand was disfigured; it was her property her son being dead; the mare was only a foal when she first saw it; it was not the branded, and she never saw it afterwards until she saw it at the Police Office. It was sent to Liverpool in her husband’s lifetime, as the property of her son; the mare was then rising three years old; when prisoner first called she did not know his name, or what profession he followed; she at that time kept the Coach and Horses Tavern; she further stated that she must have seen him before, as he was a Native, and she could not swear that she had even seen him before; could swear to his face.

William Blare (?) Halden was then examined; he deposed that he knew the prisoner, and that he had once been a licensed publican; prisoner had sent to him about Mrs Thompson’s mare, when he had an interview with him. Butler stated that there was a search warrant out for the mare, and requested him (witness) to ask Mrs Thompson what reason she had to suppose that the mare in his possession was hers; witness then went to Mrs Thompson, and in consequence of what she had said, he returned to Butler, who then told him that Mrs Thompson had been altogether mistaken, and that the mare was not here at all; witness advised him if he had the slightest suspicion that the mare was Mrs Thompson’s to give it up and have no more to do with the matter, which prisoner would not do; this conversation took place in Sydney; Butler was then living with the late Mr Richard Roberts; he said he had a mare, but that he had bought it; prisoner had suspected a person of having lodged a false information against him, and threatened to prosecute him for perjury; the name of this man was McAllister. This conversation must have taken place four or five months before Butler was taken into custody.

Mr Meredith, chief constable of Liverpool, deposed that he had had a search warrant to find a mare and foal of Mrs Thompson’s; that she came to Liverpool, and described them as well as she could; he found the mare suspected to be hers in the possession of a person named William Drummond, but the brand was defaced; could not swear to a letter in the brand; he took the mare and sent her on to Sydney; Drummond stated that he had bought the mare from Butler (the receipt was then produced in court).

William Drummond examined, deposed that he had bought the horse from Mr Butler; he did not examine the mare’s mouth, so could he have told her age by doing so; to the best of his opinion the mare was about six years old.

James Brown being sworn, deposed that he knew the mare; the mare he branded was the same he saw in the Police Office; it was at least three years and six months since he branded her; one ‘I’ was defaced, but the other was legible; she was two and a half years old when he branded her; he said he was a free man, and a bricklayer by trade.

Cross-examined by Mr Foster- He could not read or write; said there were twelve and sometimes thirteen months in the year.

John McAllister was then examined- He deposed that he saw prisoner in possession of a mare; knew the same mare on Mr Garner’s farm, near Mr McLeod’s, which he believes to be Mrs Thompson’s. He saw prisoner taking the mare off the farm, on the 8^th July 1839; he (prisoner) was accompanied at this time by a man named Huddigulty; was perfectly certain that they took the mare; saw the mare frequently in the possession of the prisoner afterwards. His Honor at this stage of the proceedings expressed a doubt as the sobriety of the witness, on account of the stupid manner in which he gave his evidence; on the question being put to Mr Meredith, who knew the man, he said he was not sober; the reason that he knew the mare, was, that she was a Timor pony.

Mr Foster then rose for the defence, and expressed at great length on the want of evidence on the part of the parties for the prosecution. He said that there was not even evidence that the mare was Mrs Thompson’s, and observed, that for cases of this kind, unless that fact was fully established, no Jury on their oaths could pronounce a man guilty of a theft. The next point he would lay before the Jury, was, that there was no proof before them that they could (considering the nature of the evidence) rely upon. That this was really the animal stolen from Mrs Thompson. One witness had stated (Mrs Thompson) that the mare was three years old, another that it was six. Another said it was a Timor Pony, but the other witness had proven that it was not. The sale of the mare had been effected by Mr Butler in a business-like manner, and a proper receipt been given to Drummond on his paying the purchase money. There were, at least strong doubts, and of course the Jury would give the prisoner the benefit of these doubts. The mare had been claimed by Mrs Thompson, who had never seen it since it was a foal, and only once then! As to the evidence of the last witness (McAllister) what credit could the Jury give to such a person, his own conduct in the witness box was enough for any reasonable person. It had been proved by a former witness that there had been a grudge on the part of McAllister against Butler, and therefore, he was not entitled to the confidence of the Jury. Besides, he had kept the secret of the theft for years! Was this likely, and is such a man to have the slightest influence on the verdict of the gentlemen on the Jury-box? Had his client been a character such as his prosecutors had wished to make him out, was it likely that he would have kept the mare for such a length of time openly in his own possession, and when he sold her, do it in such a business-like manner? Was it not more probably that he would have sent him up the country- for instance, to Port Phillip where he would be safe from prosecution? The learned gentleman further stated, that he had no doubt that the Jury would have the same idea of the subject as himself, after they had the evidence of those witnesses whom he would now bring forward to testify to the character of the prisoner at the bar.

Mr McDermott (of the firm of McDermott and Di---) being sworn deposed that he had known Butler for several years- that he had had dealings with him to a considerable extent. That for the last three years, Mr Butler had resided near one of his farms, and that he had frequent opportunities of forming an estimation of his character. He had no hesitation in saying that he was a man whose honesty and general good character, he considered to be unquestionable.

Mr G. R. Nichols deposed that he knew Mr Butler since he was a boy- they had been schoolfellows together- that he had always borne a respectable character- that he always had, and did consider him to be an honest man- Mr Butler had for some past lived on his brother’s farm.

Mr Therry then rose for the prosecution- He stated, that since the new law which allowed Counsel for the prisoner had come in to force, it was his duty, as prosecutor for the crown, to do away with any impressions which might bias the mind for the Jury from the eloquence of his learned friend Mr Foster. The learned gentleman laid the greatest stress upon the suspicion, which must arise from the prisoner not having given proof of his having bought the mare. The judge explained that prisoner was not bound by law to do so, as the theft had taken place sixteen months before the warrant was out against him.

The Jury retired for about half an hour, and on their return, gave a verdict of not guilty, in favour of the prisoner who was discharged.

NB the two character witnesses were Mr McDermott- Henry McDermott, a merchant at Surrey Hills, Sydney, who bought land in King Street.

And secondly, George Robert Nichols who was well known to the Butler family. He was the son of Isaac Nichols, an ex-convict who became a successful entrepreneur and Australia’s first Postmaster during the time of Walter’s father Laurence Butler, and Isaac’s wife, the step-daughter of Major George Johnston of Rum Rebellion fame (and whose land adjoined their Petersham property). George Nichols was born in 1809 in Sydney, and sent to England for his education 1819-1823. He was admitted as a solicitor in 1833. During the 1830’s he purchased and edited the “Australian” newspaper, once owned by W.C. Wentworth, who would become a fellow political associate in the Legislative Assembly. In May 1839 he was appointed Provincial Grand Master of the Lodges of N.S.W., S.A. and V.D.L. He died in 1857. Nichols would also help Walter’s brother Lawrence Junior, in his 1838 court case and in an application by Lawrence’s wife Agnes for a job with the Government Printing Office, providing a reference.)

The defence statements revealed that:

a) Walter had been living “for some time past” on George Robert Nichol’s brother’s farm. Isaac David Nichols Junior, received a land grant at the same time as Walter, in 1825, so the grants may have been close by each other, however, the location of these were not specified in the Land Grant document.

As the eldest son of Post Master Isaac Nichols, Isaac Junior inherited his father’s considerable stable of properties: 200 acre block and adjacent 380 acre block at Lane Cove (Parish of Willoughby), next to Provost Marshal William’s Gore’s land, Gore’s Hill, on the north side of Sydney. A further 320 acres nearby belonged to him through his wife “Miss Hutchinson now Mrs I D Nichols”.

A second block was at Willoughby, 380 acres just north of the Parramatta River; another at Yaralla between Yaralla Bay & Major’s Bay (Parish of Botany).
And the largest property at South Creek (Parish of Melville), 650 acres plus adjacent 150 acres at the end of Ropes Creek, which flows into South Creek, bordered by the farms of Geo Johnston Jnr, Maj. Geo. Johnston Snr, Maj. Edward Abbott (Deputy Judge Advocate), and Thomas Wylde (Deputy Judge Advocate, Clerk of the Peace and Crown Solicitor). (see Lands Dept PMap MN04- Image 14067101 below)

Isaac Nichols Land at South Creek, adjacent to Ropes Creek
Lands Dept P Map MN04-Image 14067101

(now known as Mount Vernon)

Isaac Nichols' land, now Mount Vernon

Map of South Creek/Ropes Creek/ Nth St Marys area

Same area in relation to Sydney, Liverpool, Parramatta, Penrith

Isaac Nichols was given a sentence of two years in Newcastle Gaol and a ₤500 fine in September 1836 for conspiring to defraud the creditors of Joseph Dobson- possibly this was the time that Walter was living on the farm. There was also a younger brother named Charles Nichols.

b) For the past three years, Walter had been living on a farm nearby Mr Henry McDermott, possibly at Surry Hills.

c) About two years before, he had “gone up to the country (Liverpool?) to keep an Inn”. The Court described him as a “publican”. The property was near Mr William Drummond.

d) Walter had been school-fellows with George Nichols who was of a similar age, both born in Sydney to convict parents.

e) His character witnesses (McDermott and Nichols) described Walter’s ‘honesty and good character as unquestionable’; that ‘he had always borne a respectable character’.

f) That the theft had taken place sixteen months before the warrant was taken out against him.

g) Another witness (Halden) stated that Walter had once been a licensed publican (‘Manchester Arms’ in 1833/34), and that at the time of his interview with Walter about Mrs Thompson’s warrant, which was four or five months before he was taken into custody, Walter had been living in Sydney at the home of the late Richard Roberts. Roberts died 1839 aged 29. (A Richard Roberts was on a “Return of allotments in town of Parramatta”, Col Sec.) As the warrant is dated July 1839, this would indicate he was arrested around late November 1839. A 'Mr Roberts' at one time had kept the 'Kings Arms' at the corner of King and Castlereagh Streets.

h) That he was supposed to have stolen the horse in question from a farm at Maryville, one and a half miles from Liverpool.

i) As the arguments put forward by the ‘learned counsel’ suggest, if the mare had been stolen, why had Walter kept the horse openly for a long length of time, and had then sold it in a business like manner, issuing a receipt on payment; and why had the chief witness (McAllister), who it was revealed held a grudge against Walter, kept the theft a secret for such a long time. He was also revealed, by the judge, to be drunk in the Court, while giving evidence, which made him an unreliable witness.

contact butler1802 @hotmail.com (no spaces)

Link back to Introduction chapter:http://butlerfamilyhistoryaus.blogspot.com.au/2012/08/walter-butler-introduction.html

Sunday 19 August 2012

Walter Butler- Ch. 6: Court Case re Horse Stealing Charge in 1840