ALLEGED ILLEGAL DETENTION OF PROPERTY.
At the R.M. Court this morning, the following case was heard before his Worship the R.M.—Henry Felton . was charged by John Goldberg, with the illegal detention of one box of fifteen wooden balls, a pack of cards, and a table cover of the value of L 6, the property of the said John Goldberg. Mr Branson appeared for the prosecution, Sergeant Felton conducting his own case.
Following the reading of the information, the defendant asked for a nonajiit, on the grounds that he had not received notice of action from complainant, as required by the statute under which the information was laid. Mr Branson declined to bo nonsuited, pointing out that such course of proceedings could not be entertained prior to the hearing of the evidence for the complainant. His Worship conceded to Mr Branson’s opinion, and reserved the point raised by the defendant till following the hearing of the case for the prosecution. The complainant was put in the box, and, being sworn, deponed-r-I am a hawker. The defendant has in his possession a box containing fifteen marbles, a pack of cards, and a table cloth, my property. I was defendant in an action under the Vagrant Act, for playing a pretended game of chance, heard on Saturday last; and on Tuesday I defended an action under the same Act for having no lawful means of support. Both charges were dismissed. Following my release I defendant to give" up the property which was found on me when arrested. He gave me up Ll 7 odd, some bags, and other articles, declining to give me the box, marbles, and cards, saying he should destroy them. They are my property. The box would be worth about six shillings, the tablecloth cost me L 4 odd, and the cards about a couple of shillings. Cross-examined by defendant What are the box and marbles used for? —Oh, several different things. I used them at racecourses and other places. Do you play a pretended game of chance with them ?—I play a game with them. What were the cards used for ?—Oh, we play amongst ourselves —for gambling in the train.
Are they honest cards ?—We use them for cribbage. But are they honest ?—I don’t know; we use them amongst ourselves for playing when we’re going through to Dunedin in the train.
Are the box and marbles used for playing an honest game ?—You can play with them as you like ; I don’t know. I know you can ; you can let out any ball you like ; but can you play an honest game with them I —l don’t know ; I suppose so. What do you use the cloth for I —For playing a game. And what do you call out ?—I don’t recollect. You don’t recollect ?—No, not forcertain ; but I think it’s “1 to lon the red, 1 to 1 on the black, and 12 to 1 on the white.” And the box ; can’t you control the marbles in it ?—I don’t know. But can you play honestly with it 1 — Yes.
And you can play dishonestly ?—I don’t know if you can. Do you recollect my coming up to you at the Tinwald steeplechases on Friday last I—Yes.1 —Yes. What were you doing I—l was playing. Do you recollect ray asking you a question as to what the game was I—l1 —I don’t recollect. Do you remember what I said after I took the box ?—No, not all ; all I recollect was you took the box out of my hands, and told Mr Neill to arrest me. Were you ever convicted before ? Mr Branson : I object to this question. It has nothing to do with this subject. The man has served his term. You’ve no right to put such questions to him. His Worship—But, if not, the defendant can give evidence of what he knows about any such conviction. Mr Branson—Just so, your Worship; let him. But the question is not a fit one.
Defendant—But I know him to be a vagrant, convict, and thief. He’s always under the police surveillance. Mr Branson—Well, I am perfectly willing to take it in this way, your Worship. As regards this nonsuit point—let Sergt. Felton, if he can, produce any one authority which will warrant his detention of these goods. If he can do so, it is perfectly useless to go on. Sergeant Felton stated that he regarded the property in the same light as he would a forged cheque ; which, if found in a person’s possession, would certainly be retained by the police. It was the intention of the police to institute further prosecutions against the complainant, and fhis would have been done already but for .the sickness of an importantwitness. ! i
He retained the goods in question for purpose of proving this charge, as, did he give them up to Goldberg, they would certainly be destroyed. By giving them up he should be making himself an accomplice to vagrancy. He had known Goldberg for years as a thief and a vagrant.. He was a person who lived on prostitution, and wherever he went the.’ police received notice of his movements. He (Sergeant Felton) should send notice away to other police offices were he to leave the town to-day, and thus bis whereabouts was always in the hands of the police. Mr Branson said the goods could not be regarded id"the same light as a forged cheque, the former was valuable security, the latter worthless.
Sergt. Felton continued—lf he were togive the particulars of the proceedings to be instituted against complainant he would certainly leave the town. Mr Branson—This iSa new get up, this story of the lost witness.Sergt. Felton—No it is not. I can call the constable to prove that for the past two days he has been looking for the witness wanted.
Mr Branson said he was quite prepared to withdraw the case provided Sergt. Felton produced any authority for holding the goods. It would probably be a new piece of nonsuit law to Sergt. Felton to learn that the words used in the Act under which he claimed his nonsuit specified that the person acting in pursuance thereof must necessarily detain the goods. Whether it was necessary.in this instance or not was a subject for the decision of the Bench. But detention was only necessary in cases where the person considered that his action was honajide, and that the state of the facts rendered such detention plausible. He quoted from “ Bullen and Leake’s Precedents,” p. 759, viz. : “A person is to notice of acting under, or in pursuance, or in execution of his office, where he bona, fide believes in the existence of facts which, if existing, would justify his acting in pursuance of the statute, or in execution of his office — (Roberts v. Orchard, 2 H. and C., 769, 33L.J., Ex. 65 ; Leete v. Hart, L.R., 3 C.P., 322, 37 L.J.C., p. 157); and it seems there must be resonable grounds
for such belief;” and “but he is responsible for mistakes of law, so that if the law will not justify him upon the facts bona fide belie ved,he is’not acting in pursuance of the statute and from “ Addison dn Torts.” The law, as distinctly laid down in these cases, left it in the hands of his Worship to decide if Sergeant Felton believed the existing facts of the case would justify his detention of the'goods. ' No such bona fide belief existed, and no law or statute existed which would justify him in retaining these. This on the face of the facts that Goldberg had been twice arrested and discharged- 1 Immediately after his dismissal he became an innopent person, ■ and no law existed, either in the colony or the mother country which would sanction the seizure by one person of another’s goods. The police maxim was that a man was guilty until proven innocent, but this was not to be, taken as a precedent, rather regard a'lharT as innocent until proven guilty. Before a person could claim notice of action, he must bring himself within the range of the cases cited. This Sergt. Felton couldnot do, therefore nond was He Stigmatises the plea advanced by the defendant as one more mean in character than rw;ould be.one of infancy. No matter what future action the defendant intended, question was, was the complainant entitled to the goods at the time the demand was ..made for them! The conclusion that Sergt. Felton had arrived at regarding the probable dishonest application of the articles fey the complainant did he regain possession could not be entertained in a consideration of the merits of the suit. There was no Act which allowed a man to be arrested in the street, for ' carrying a false pack of cards on his person, although one existed for the arrest of. anyone .carxying loaded Regarding' the defendant’s further supposition as to the’destruction of the articles by his client, - Well so much the better if they were such frightful instruments. He contended, first, that the defendant was not' entitled to any notice of action, and secondly, that as informent had ‘gone through ‘his penalty for any offence ho might have committed he could no longer be called a convict. Sergt. Felton—Would your Worship turn to page 764 of “ Addison on Torts,” where it says, “ The words in clauses pf Acts of .Parliament requiring notice jpf[ action to be? given ’in' respect of anything done in pursuance of the Act or in execution of the powers thereof, apply to all cases were parties are intending to act. ”, You see, your Worship, “ Where they are, intending to act. ” Mr Branson—Well, go on. Sergt. Felton— c .‘ Intending to act upon powers given fey the statute'.” Mr Branson—“ Upon powers given by the statute.” Just so. You left that out
very cleverly. It won’t do. “Upon powers given by the statute.” you’re
very clever that way, sergeant. The defendant was sworn, and was on duty at Tinwald steeplechases, on Friday, and saw the accused there. ! 1 1 ! had him arrested. Regarding the charge against him, there appeared to be two or three courses open to me, and the decision given in one does not preclude my acting under another. • It all depends on one witness, and as soon as possible, an information will be Laid. If I-give up the goods they will be destroyed. lam aware that I am not protected in iny action by any statute, but I hold them, as Sergeant of Police. I don’t want to re .arrest -tbh man and have to apply for a remand, but would sooner wait till this tvitr.osa is obtained.
Mr Branson But was the man arrested on this charge you speak of 1 Witness—Which charge ? Mr Branson The one you intend bringing ? Witness—No. Mr Branson—Then you’ve no right to notice of action, and you are holding the goods of an innocent man. This was the case for the defence. His Worship—l think the police are perfectly justified in retaining the goods. It was necessary, in the interests of the public at large, that these things should be retained, and there are sufficient grounds for the Sergeant to demand notice of action. Mr Branson questioned the law under which his Worship had seen fit to arrive at such a decision. The reply was inaudible. Mr Branson: I must certainly give notice of appeal. I never heard such a monstrous thing. His Worship—l shall be very glad to permit the appeal. Do you appeal on the law of the case ? Mr Branson—Certainly. The decision is directly in the face of the statute. . ' His Worship—Very well. Deposit LlO then. Mr Branson - It is very evident that one can take no successful action against the Sergeant of Police in this Court. The Court then race, , t j :
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ALLEGED ILLEGAL DETENTION OF PROPERTY., Ashburton Guardian, Volume 2, Issue 361, 3 June 1881
ALLEGED ILLEGAL DETENTION OF PROPERTY. Ashburton Guardian, Volume 2, Issue 361, 3 June 1881
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