Daniel Clarke [23713]

   Ancestral File Number: Q4F9-DN. FamilySearch ID: M2VV-4HT.

  Death Notes:

At Terramut Bung, Sutton Forest, New South Wales.

  Burial Notes:

All Saints Church Cemetery.

  Noted events in his life were:

• Occupation: Whaler. ⁵

• Immigration: free as a sailor per Spinggrove (a whaler), 1809, Port Jackson, Sydney, New South Wales. ⁶

• Permission to Marry, 1814 Apr 5, Windsor, Cumberland County, New South Wales. ⁷ CLARKE, Daniel. Of Hawkesbury
1814 Apr 5 Re permission to marry at Windsor

• Land, 1814 Jun 30, New South Wales. ⁸ CLARKE, Daniel. Of Hawkesbury
1814 Jun 30 On list of persons to receive grants of land in 1814

• Occupation: Farmer of barley, maize and oats. ⁹

• Other, 1821 Mar 21, Windsor, Cumberland County, New South Wales. CLARKE, Daniel. Of Hawkesbury
1821 Mar 21 Store receipts of for wheat paid at Windsor (Reel 6051; 4/1748 pp.156, 181)

• living, 1833 Oct 13, Sutton Forest, Camden County, New South Wales. ¹⁰ R. v. Drake, Drakeford, Wilson, Wallace and Batchelor

Supreme Court of New South Wales

Burton J., 22 November 1833

Source: Sydney Herald, 2 December 1833[1]

Friday. - Before Judge Burton, and a Civil Jury.

John Drake, Charles Drakeford, Robert Wilson, William Wallace, and William Batchelor, stood indicted for felony; by force of arms putting in bodily fear one William Clarke, and stealing from the dwelling-house of Daniel Clarke, sundry articles, his property, at Sutton Forest, on the 9th day of October last.

Hannah Clarke, wife of Daniel Clarke, stated that she lived at Sutton Forest, about nine miles from Bong Bong, and had a house there; she was in the yard milking about nine o'clock in the morning, of the 8th of October last, when her son William Clarke, who is between eight and nine years of age ran to her and said, there are five men of the gang going to the house; she desired him to go to the house and see what they wanted; the men kept him there, and she still remained milking; she did not go to the house; they were there about an hour, when they came to the yard, and two of them, (Drake and Batchelor,) came up to her, and asked her for the fire arms; she told them she had none; they then asked her for her money; she said she had only three-half-pence, which was no good to them; one of the prisoners (Drake) then put his hand in her bosom, saying, that was the place where women kept their money; he found none there; the other man (Batchelor) wanted to take the ring off her finger, and held her hand for that purpose, but did not take it; both these men held sticks over her head, but did not ill-use her; she told them to take the milk, but on turning round, found they had already done so; there were three other men outside the yard, but she could not identify them; one of the men threw me a piece of calico which they had taken from the house; they then all went away; she was positive as to her recollection of two of the men, but did not see the faces of the other three; on returning to the house, she found it in a bad state, and missed two papers of needles, one ounce of pins, one pound and a half of tobacco, one pound and a half of tea, some thread, soap, bread, a pair of fustian trousers, and a broad belt with four buckles, all of which were in the house when she left it to go into the yard; she saw the belt and trousers at Bong Bong, four or five days after the robbbery; the prisoners were not dressed then as they are now.

The prisoners put no questions to witness.

The boy William Clarke, was then put in the box, when His Honor took great pains to ascertain from him if he knew the nature of an oath. The boy replied, I say my prayers at night; I do not know my catechism; I do not know the meaning of an oath; I think God would punish me if I told an untruth; bad people go to hell; where good people go I do not know; God is said to be in the sky; I cannot read or write, but I can say my A, B, C; I think God would punish me if I swear wrong. His Honor told the Jury that he thought the boy had sufficient understanding to take the oath, which he did accordingly, repeating the usual words distinctly after His Honor's dictation.[2] The boy then proceeded to give his evidence audibly. That is my mother (pointing to Hannah Clarke); Daniel Clarke is my father; I am going on for nine years old, I see two of the men that came to the house; I know that the man, and that man, {looking at two of the prisoners; he was here given the Crier's wand, went down through the body of the Court, and touched with it two of the prisoners, Drake and Batchelor.) They are the same two that came down with three more over the follow and into the house, on Sunday the 13th of October; there were five men altogether; they told me to go to mother for something to eat; as I was going to mother one took me in his arms, and put me on mother's bed; that man (Drake); he told me to find fire arms, balls, and mother's money; I saw them take pins, needles, and bread; they took powder, balls, and duck-shot, and a pair of trousers belonging to another man, named Ben, up the country, a pair of trousers like - (looking at the gentlemen in the body of the Court) I do not see any on like them here; they took a belt and three razors, and put them in a bag; one man kept watch outside; those two were inside; the second man (Batchelor) shook a stick over my head; he did not hurt me, he frightened me; I do not know the others; I did not see them much; the two I know that shook their sticks over me; they staid in the house about an hour; they went up the same hollow as they came; they went to mother, and told me to stop in the house; I have not seen any of the things since; I was much frightened, but did not cry; I saw all they did.

In answer to a question put by the prisoner Drake, the boy said mother did not tell me to say the bed; the bed was in the bed-room; my father told me it was on the 13th of October; it was on a Sunday morning.

John Hinton, one of the mounted police at Bong Bong, apprehended all the prisoners on the 14th October; he found some clothes on them, principally on their backs; he took from them two small bags, but could not say correctly from which of the prisoners; he took also one razor, (property produced.)

Hannah Clarke knew the razor; it was taken from her house.

The gaol-keeper at Bong Bong said the trousers were taken off the prisoner Charles Drakeford, and the belt he got from a man named Lears, who was in custody on a charge of cattle stealing.

Hannah Clarke said, I know that belt; I saw it on the second man (Batchelor) in the yard; the trousers I know, but they have been altered; they belonged to Benjamin Cartwright, who is up the country; I am certain they are both the same.

Thomas Lear examined. - I was confined in gaol with the prisoners on the 15th October; we were all in the same cell; I know that belt; I found it hid between two slabs; it was not given to me by any body; two others went in with me.

John Hinton. - I apprehended all the prisoners at the bar, about twenty miles from Mr. Clarke's house, about two o'clock on the Monday; they had no arms; they had all sticks; I was alone; they surrendered immediately.

The prisoners offered nothing in their defence.

His Honor in summing up, observed that this was the natural consequence of prisoners being at large; they were compelled to rob for their subsistence; if they would perform their duties under sentence, they might look forward to their release, and we should all suffer less pain than they now impose on us, and on themselves. There must be bodily fear from violence to substantiate the capital charge. There appeared to be no violence, except frightening the boy by shaking the sticks over him. There were only two of the prisoners identified by Mrs. Clarke, and her son; but the gaoler had found the trousers on Drakeford. The Jury would weight the matter dispassionately, and come to their decision accordingly. If they felt any doubt, to give the prisoners the benefit of it.

The Jury pronounced John Drake, William Batchelor, and Charles Drakeford, Guilty of larceny - Robert Wilson, and William Wallow Not Guilty.[3]

Notes

[1] See also Sydney Gazette, 23 November 1833; Australian, 25 November 1833. The judge's trial notes are in Burton, Notes of Criminal Cases , State Records of New South Wales, 2/2410, vol. 7, p. 14. Burton's notes often gave the civil condition of the defendant, whether bond (convict) or free. These prisoners were all noted as ``bond".

[2] One issue concerned the method of oath, and whether it differed with different religions. The Australian reported on 1 November 1833 that "Judge Burton refused to allow a witness who was a Catholic to cross himself before giving evidence in the Supreme Court, and he considered such a system if permitted, might have a tendency to encourage mental reservation." See also Australian, 17 January 1834, stating that Burton had argued that Catholics and protestants should be sworn in same way, unlike the present practice.

[3] The prisoners were then tried again on a charge of robbery in a dwelling house, this time the house of Robert Humphreys, also of Sutton Forest. All were found guilty of the lesser offence of larceny: Sydney Herald, 2 December 1833. The judge's trial notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2410, vol. 7, p. 22.

• Occupation: Grazier: Sutton Forest, Camden County, New South Wales.

Daniel married Hannah Stanley [23714] [KP4L-ZCD] [MRIN: 17105] on 1814 May 2 in Windsor, Cumberland County, New South Wales.¹¹ (Hannah Stanley [23714] [KP4L-ZCD] was born on 1788 Jun 13 in Deptford, Kent, England, United Kingdom ¹², christened on 1814 May 2 in Windsor, Cumberland County, New South Wales,¹³ died on 1854 Dec 26 in Sutton Forest, Camden County, New South Wales ¹⁴ and was buried on 1854 Dec 28 in Sutton Forest, Camden County, New South Wales ¹³.)

  Marriage Notes:

at St Matthew's Church of England.