3 Years Hard Labour for Receiving

After having received the benefit of the doubt in relation to the charges that resulted in his first two appearances in Court, on the third occasion Ned Kelly wasn’t so lucky and he was sentenced to six months hard labour at Beechworth Prison, for Assault and for Indecent Behaviour.  His mother paid out £60 in sureties and had nothing left, but if his extended family had been able to come up with a further £10 he would only have needed to serve half that time. Unfortunately for Ned, as I pointed out in my previous post, even though an uncle had recently received a huge reward for helping the Police catch Harry Power, neither the uncle nor any other member of his large extended family was prepared to help him out.

The Day he entered prison for the first time, for assault and indecent behavior, November 11^th 1870 was exactly 10 years before the date of his execution in another Prison, for murder. But though his family didn’t seem to care enough to spend £10 to minimize his exposure to the prison environment at the age of 15, the prison authoritites did, and he was set free 5 weeks early, on March 27^th 1871. Peter Fitzsimons writes “Having just come from working at Beechworth Gaol where he had come to know Ned a little, Constable Bracken makes a point of visiting the Kelly home – for he is a kindly soul- and, on this occasion chats “with the family in the hope that they would alter their way of living and become law abiding citizens”  

Jones on the other hand, more intent perhaps on promoting the Kelly line that the Police were out to get them, ignores Brackens visit and instead writes 

“ His (Neds) return was undoubtedly noticed by Hall or drawn to his attention by one of his toadies” 

Pure, and somewhat paranoid speculation! But once again I ask, where is the evidence of Police corruption and a hostile determination to oppress and to keep the Kellys behind bars for as long as possible and at every opportunity? Yet again, we are not finding it - indeed we are finding evidence to the contrary: remission of sentences, home visits. 

I described Neds behavior in the McCormick incident that resulted in his first jailing, as “smart arse” behavior, and sadly neither his time in Prison nor Brackens support afterwards seem to have affected his attitude towards society and the Law because within a few weeks of his release he was arrested in possession of a stolen horse. Ned, as do all suspects accused of receiving, protested that he was innocent and that nobody told him the horse had been stolen. “ Yeah, right” was my response to that when I first discussed it last year in my review of the Jerilderie Letter where Ned wrote about this incident. Ned claimed that the horse had been lost by “Wild” Wright, who, after borrowing a replacement from Ned told him that if Ned should find the lost mare he should keep it until such time as Wright returned. Ned, and Kelly sympathisers ever since have insisted that Ned wasn’t told that in fact Wright had “borrowed” the horse from the Mansfield Postmaster.

Now, at this point I stop to ask Sympathisers to put their hands on their hearts and swear that they too believe Ned hadn’t the slightest idea that this horse was stolen. I doubt anyone but the most willfully blind fanatic could do so - it is much too much of a strain on credulity to accept the idea that it didn’t even occur to Ned that this apparently magnificent animal was legitimately owned by a man known as “Wild” for good reason, a man with a reputation for drinking and fighting as well as stock theft, and all in an environment where stock theft was common.

Doug Morrissey sheds much needed light on this episode in his 2015 work, “Ned Kelly: A Lawless Life” and shows Neds claim was indeed a lie. A Police informant named James Murdoch revealed that Ned had tried to involve him in a plan to sell that horse along with some others: Ned knew it was stolen, he planned to sell it and who knows if Wild Wright was planning to come back for it. Ned again caught out telling lies!

In Court, Neds protestations were rightly dismissed and he was convicted of Receiving and sentenced to three years hard labour. Wright by contrast was sentenced for “Illegally Using”, rather than theft, and received only eighteen months, a sentence which according to the Kelly sympathisers is clear evidence of the judiciaries determination to be unjustly harsh in its dealings with the Kellys. Why else would Ned Kelly get double the punishment for receiving a stolen horse than the person who stole the horse in the first place? In the Kelly sympathisers mind no other explanation is possible, but in fact there is an alternative quite straightforward one, provided by Morrissey who answers that question like this:

“In the first instance, the mare was not stolen but “Borrowed” from the Mansfield Postmaster….Wright had borrowed the Postmasters horse on previous occasions and returned it, knocked up and the worse for wear. The Postmaster, knowing Wrights character did not report it, but after several weeks without a horse he did report the latest “borrowing” to the Police”

and later

“The crucial distinction to be made here is between Borrowing without permission – “Illegally Using” -  and “receiving" which legally implied theft. It’s the difference in modern terms between joy riding for fun and car stealing for profit”

In Australia today, the maximum sentence for Joyriding is five years, and for Stealing a car is ten, so for these equivalent offences to “using” and “receiving” a horse, the penalties are tougher now than they were in Neds time. Kelly sympathisers claim of course that Ned was harshly dealt with but the evidence suggests otherwise.

This simple clarification also helps to explain why Wright didn’t come to the defence of Ned, as the Kelly sympathisers complain he should have. In fact Wright was double crossed by Ned, who had decided to sell the horse rather than give it back it to him when he returned, which was the original plan. No doubt “Wild” was enraged to learn of Neds duplicity, and so, much later with old scores to settle this very issue was said to be the reason for a famous 20 round Boxing match between them. As it happened, “Wild” lost the fight, but must have felt honor was done, as they went on to become close associates.

There is one other aspect of this case which has to be discussed, and that is the circumstances of Neds arrest by Constable Hall, the same Policeman who had arrested him in relation to the McCormick affair. That can wait till next time.