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ASHBURTON CASES AT THE SUPREME COURT., Ashburton Guardian, 8 April 1880
ASHBURTON CASES AT THE SUPREME COURT.
Wednesday, April 6. The sitting of the Court was resumed at 10 a.m. HORSE STEALING. James Gardiner was indicted for having stolen three horses, the property of Michael Higgins. The prisoner, who pleaded “ Not Guilty.” was defended by Mr. O'Reilly. Mr. Duncan prosecuted on behalf of the Crown. The evidence was repeated as given in the R.M. Court. Mr. O’Reilly, in crossexamining Mr. Crisp, sought to put in the depositions. His Honor obfectod, as they contained inadmissible evidence, the first document was not proved to bo lost. Mr. O'Reilly—l submit, your Honor, it was proved to be lost. His Honor —It is net so in the depositions.
M-. O’Reilly—Then the evidence was not taken down.
His Honor—That is an improper observation to make.
Mr. O’Reilly—lt is a fact. I simply say that the Magistrate satisfied himself by strictly legal evidence that the document was lost before receiving evidence of it. The evidence now given differs materially as to the loss. lam taken by surprise, and I have a right to observe on it. I shall examine on the depositions as to test the credibility of the witness. His Honor—No doubt you have a right to do that.
Mr. O’Reilly then cross-examined Mr. Crisp as to the evidence in the R.M. Court, when it appeared the first document was a security only, and that Mr. Crisp had no instructions from Gardiner for the absolute receipt. Mr. Branson, the bailiff of the R.M. Court, having given his evidence, Mr. O’Reilly objected to the warrant. It did not follow the judgment, and the judgment already in evidence was clearly bad.
His Honor : On what grounds 1 Mr. O’Reilly : Under section 58 of the R.M. Act, 1867, an order for the return of a specific chattel can only be made when the action is brought in detinue. A claim for damages may be added. This was for damages only. His Honor then inspected the plaint book and warrant, and said it was clearly bad, the magistrate had no jurisdiction ; but he did not see how this affected the case.
Mr. O’Reilly ; Clearly, your Honor, no possession has been proved in Higgins. His Honor : Mr. Crown Prosecutor, there is clearly a question of law here. Mr. Duncan : Yes, your Honor. His Honor: Mr. O’Reilly, you can raise your point by-and-bye. The evidence for the prosecution was then concluded, and Mr. O’Reilly said he would submit that there was no evidence to go to the jury. It was admitted Higgins did not get possession at the time of the payment of the money, and the warrant was relied on to entitle the bailiff to give possession. The warrant being bad, the bailiff was a trespasser, and could not give a title to Higgins. The presence of Higgins was clearly a trespass. The property must be proved as laid in the indictment, therefore there was no case to go to the jury. There was no evidence to show that Higgins got possession from a person entitled to give it. His Honor said the question -was no doubt a difficult one; but were not the goods de facto in possession of the prosecutor when the prisoner took them ? Mr. O’Reilly then said he would let the point stand over as he was in a position to prove that Higgins was a trespasser. He would call evidence, and he then addressed the jury. He said it way very evident from the evidence already taken that the money was lent by Higgins on the security of the horses and plough, but it was not necessary for him to dwell on that point, because under a duly registered mortgage of stock, Friedlander Bros, were the owners of the horses in question, and not only did the property vest in them, but by the 6th section, the Mortgage of Stock Regulation Act the possession was also vested in them. It being therefore clear that Higgins had neither the property nor the possession the indictment could not be sustained. ,
His Honor (interrupting)—Then the defence is that the prisoner has not committed the offence charged, but has committed another offence. Boni-si
Mr. O’Reilly said that by no means followed. It was assuming entirely too much. The security was simply a second mortgage, and there was nothing to prevent borrowing on a second mortgage. Mr. O’Reilly then called Hugo Friedlander —I am a member of the firm of Friedlander Bros. In June, 1879, the prisoner gave us a bill of sale over his stock, etc., including the three horses mentioned in the indictment. In February I told Gardiner to take possession of the horses, whoever might have them. I did understand that Mr. Branson was the bailiff of the Court, and that he held the horses as such. I told prisoner to take the horses from Mr. Branson.
Cross-examined by Mr. Duncan —I know that prosecutor had some claim on prisoner. F. de 0. Malet, Registrar of the Supreme Court, produced a mortgage of stock—Gardiner to Friedlander Bros., filed 9th July, 3 879. James Gilchrist gave evidence as to witnessing the signatures to the bill of sale.
The prosecutor being recalled, stated that the prisoner at no time told him that there was a bill of sale over the horses to Friedlander Bros., nor did he claim them for that firm.
Mr. O’Reilly then proceeded to address the j ury for the defence. After he had opened his address,
His Honor asked Mr. Duncan whether he thought he could support the charge of larceny on the evidence as now presented. Mr. Duncan said that he did not think he could support the charge of larceny on the evidence.
His Honor directed the jury that there was no evidence on the charge of larceny. The jury, under direction of his Honor, returned a verdict of “ Hot guilty,” and the prisoner was discharged. LARCENY. James Stephens was indicted for having, on the 2nd December, 1879, stolen a quantity of drapery, &c., the property of H. C. Turner and another. Mr. Spackman, instructed by Mr. O’Reilly, appeared for the defence. Mr. Duncan prosecuted on behalf of the Crown. The case for the prosecution was that the prosecutor, who is a hawker, -was at the Mount Somers Hotel with his wagon on the date named, and the prisoner, who is also a hawker, was there too, and examined prosecutor’s wagon. Ths prosecutor left the wagon for some time that night, and on returning missed a quantity of drapery. Information was given to the police, and on the 3rd of February the prosecutor went to prisoner’s premises at Alford Forest, and found a large portion of the-jawoperfey alleged to have be«| stp ~-/ \shirts being idcntifie^AM
prosecutor as having been specially made to their order. . , A. Orr spoke to prisoner s good cnarac-
The same evidence as given in the Court below was repeated, and with the facts of the case our readers are familiar. Mr. Spackman called evidence for the defence, and then addressed the jury. _ His Honor summed up and the jury returned a verdict of “ Guilty.” His Honor sentenced the prisoner to eighteen months’ imprisonmert, with hard labor. INDECENT ASSAULT. William Skedgewell was charged with indecently assaulting Elizabeth James. The prisoner, who was undefended, pleaded “Not Guilty.” Mr. Duncan prosecuted on behalf of the Crown. Evidence having been led to prove the offence, The prisoner cross-examined the prosecutrix at some length as to her character. His Honor summed up shortly. One of the jurors (James Forester) slid that the prisoner had asked whether prosecutrix had ever lived with a man named Taylor, and she had stated that she did not. Now, he (Forester) know different. The juryman was sworn, and stated that last year some time he knew the prosecutrix as Mrs. Taylor. She was living with a man named Taylor in Harper street, Sydenham, and in Fourth street. She had credit from witness, who was a butcher, under the name of Mrs. Taylor. She lived with Taylor as his wife, but was not married to him.
His Honor asked the prosecutrix whether she wished to ask any questions.
The prosecutrix said she was not the person at all. The witness Forester said he had no doubt at all as to the identity of the woman.
H. B. Ballinger, another juryman, also testified to the identity of the prosecutrix as the woman living with the man named Taylor. His Honor asked Mr. Duncan whether after this he could hope to proceed with the case.
Mr. Duncan replied in the negative. His Honor asked Mr. Superintendent Broham if the police could give any information as to the alleged attempted suicide of the prosecutrix. Mr. Superintendant Broham replied in the affirmative.
John Briggs, a constable in the police force, deponed to knowing the prosecutrix under the name of Doe. She was arrested in Christchurch some twelve months back for attempting to commit suicide by drowning. She was taken to the lock-up. His Honor asked Mr. Duncan whether there was any case to go to the jury, when the prosecutrix had committed no less than three assignments of perjury. Mr. Duncan said that he would not proceed with the case.
The jury, under direction of his Honor, returned a verdict of “ not guilty,” and the prisoner was discharged.
ASHBURTON CASES AT THE SUPREME COURT., Ashburton Guardian, 8 April 1880
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