Wednesday, 9 August 2017

"A malicious conspiracy to defraud"

In November 1837 a conspiracy to defraud Wilberforce farmer, Michael Power of £500 took place. Benjamin Hodghen, a settler and also a constable, along with his daughter Mrs Ann Payton, widow, both of Windsor collaborated with Elizabeth, Michael’s wife, to defraud Michael Power. But then Elizabeth was also swindled. The individuals were all caught and the case was heard by the Supreme Court in February 1838. Many inhabitants from Windsor and Wilberforce attended the hearing.
The Australian 23 February 1838, p. 2. 

Mrs Elizabeth Power was the wife of Michael Power, a farmer of Wilberforce. He apparently ill-treated his wife. So when he was absent from home one day, she broke open a box belonging to her husband and removed £500. She then made away with the money. During the court case, Michael reported that the couple “were always very comfortable; scolding is nothing between man and wife”. He also admitted that he “often struck her, but that is nothing between man and wife.”  The case was reported in details in the newspapers of the time. It reports:
The husband, on discovering his loss, applied for and obtained a warrant from Samuel North, Esq, to apprehend his wife for absconding, and she was taken into custody, but the money was not found upon her person. On the following morning Hodghen, the chief constable of Windsor, took Mrs Power out of the Watch-house, and brought her to his house to breakfast with him, and having sounded her as to whether she had the money, she, after some hesitation, took him to the house where it had been left, and brought it away tied up in a small bag. She then returned to Hodghen's house, where she deposited the money in Hodghen's hat in presence of his wife and daughter, having previously promised him that if he would not deceive her, she would make him a handsome present. On being taken before the magistrate, the money not being forthcoming, Mrs Power was discharged from custody, upon which she returned to Hodghen's house, where she resided about a week. 
Suspicion having been excited that Hodghen had the money, a search warrant was obtained against his house, which was executed in his absence by constables Cobcroft and Armfield, who explored everything in the premises with the exception of a writing desk, and a clock which was locked up and of which they were informed Hodghen had the key. It was subsequently alleged that the money was planted in the clock, Hogdhen afterwards gave Mrs Power £84, as her share of the spoil, and she went to Sydney with a view of proceeding to Van Diemen's Land, where she had a daughter. On the road however, she fell in with her husband, who took the money away from her. She then returned to Hodghen's house, where she demanded a further share of the spoil, and Mrs Payton (Hodghen's daughter, who with the mother had taken an active part in the transaction) and a man named Dennis Dwyer, (who refused, when giving his evidence, to answer whether any criminal intercourse had taken place between him and Mrs Power) then accompanied Mrs Power to Sydney, where a passage to Van Diemen's Land was negotiated for her. Upon being pressed to embark, however, Mrs Power found that only £5 had been given by Hodghen to his daughter to deliver to her, which she complained was not sufficient to carry her halfway on her journey. 

Elizabeth Power refused to go, despite Mrs Payton trying to persuade her, and Elizabeth eventually made a statement before Mr North, the Police Magistrate at Windsor.
On the part of the defence, Mr Foster contended that the present information must fail, inasmuch as it was clear from the evidence, that there had been no conspiracy entered into to obtain the money, which had been previously taken by the wife, and voluntarily handed over to Hodghen. In consequence of this, the learned gentleman contended, that the two first counts in the information, could not be supported. Mr. Foster also contended that the third count was defective—for that a general description of the offence, without specifying the means taken to complete it, was insufficient in law. The learned judge reserved the objections, should there be any necessity for their after consideration. In his charge to the Jury, the Chief Justice recommended them to dismiss the two first counts from their consideration, and to apply themselves wholly to the third, on which, he was of opinion, it was competent for them, if they believed the evidence, to convict the defendants. The Jury, after upwards of half an hour's consideration, returned a verdict of Guilty, upon which the defendants were remanded from their bail until Friday (this day) when they are to be brought up for the judgment of the Court.

Several days later, Benjamin Hodghen was convicted of conspiracy and sentenced to two years in Newcastle Gaol, and was required to pay a fine of £500. His daughter Ann Payton, was sentenced to two years in Newcastle Gaol. It doesn’t appear that a conviction was recorded for Elizabeth. Did she return to live with her husband? One wonders what her story was.

You can read the story in full in The Australian 23 February 1838, p. 2.

This article was first published in the Hawkesbury Crier December 2016 pp. 14-15