SUPREME COURT.-Criminal Sessions.

Auckland Star, Volume XXIV, Issue 4330, 2 April 1884, Page 3

SUPREME COURT.-Criminal Sessions.

This Day.

(Before his Honor Mr Justice Gillies.) The usual quarterly sessions of the Court ior the despatch of criminal business were •opened this morning ; his Honor taking his seat upon the bench at 10 o'clock precisely. THE GRAND JURY. Tho following gentlemen were empannellod as the Grand Jury, via. ;—Edward Bartley, Thomas Benton, George ffm, Binney, Wm. Burton, James Buttle, Edward Champtaloup, James McCosh Clark, Frederick Compton, Charles Cook, John Edson, Josiah Clifton Eirth, Henry Gilfillan, Robert William Hammond, Charles Hesketh, Joseph Howard, Barton Ireland, Thos Hunt Ivey, John Kirkwood, Edward Lewis. Oliver Mason Craig was also called, but did not appear. Mr J. C. firth was chosen foreman. JUDGE'S CHARGE.

His Honor delivered the following charge: —Mr Foreman and gentlemen of the Grand Jury, —The cases which you will havo to deal with on this occasion ore not very numerous, thero being only 15 charges on the calendar ; but although not numerous there are some very grave charges amongst them—some of the most serious, indeed, that have been beforo this Court for a long time. Th 3 most serious of all is one in which tho accused is charged with attempting to murder, that is, shooting with intent to murder. The depositions in that case are very simple, nor is there anything in the law to which it is needful to direct your attention further than to say that of course the intent is the ossence' of the offence, and that intention must bo gathered from the act and from what tho law implies. The law implies that wherever n man uses weapons, suoh as revolvers or guns, and fires at another, it is presumed that he had an intention to do that which is tho natural consequence of his act. If ho shoots a man, the presumption is that he intended to kill him, unless that presumption be rebutted by othor evidence. There aro two cases of larceny against a Maori, and a case of breaking and ontering a dwelling, which I need not refer to. The evidonce is very simple, and you are all aware of what constitutes the crime of

larceny. There is another sorious crime -charged, that of arson, or setting fire to a building. Now, I would particularly direct your attention to this caao, because tho evidence as to setting lire to the premises in ■question rests principally upon the -accused's own admission that he had been in an -empty house, that 'he had lit his ipipe and thrown down the match; and that the housetook fire thereby. Now, the essence •of the crime of arson, or setting tiro to property", is that it shall be done wilfully and maliciously, and unless so done, however wrong the act which caused the (ire, it is no crime. So you will have to say Whether tho ovidenco shows that the act was committed unintentionally or maliciously. There is one chargo of forging j ■and uttering, which I neod not refer to, the facts being very simplo, as also a <oase of maliciously wounding a horso. In this latter offence there does not require to toe any malice against the owner or tho animal itself. If the man recklessly fires a shot and inflicts any injuries, however slight, he is guilty of tho olFeneo. Thoro is another caso of burglary, in which the ovidenco is very simple also, and one, too, of indecent assault, which I need not roferyou to. Thero is ono caso in which the accused was committed for trial for larceny as a bailee. Whether or not it will come beforo

you in that form, lam not aware. The circumstances are peculiar, and may occasion you some difficulty in determining exactly what offence was committed. It appears that a Maori got a telegraph money-order for £10. Ho then gives it to or allows the accused to take it to be cashed. This person gets the order cashed, and gives the Maori £4 as tho proceeds, retaining the other £6 in his own possesion. If tho telegraph money-ordor was given to the accused for the purpose of getting it cashed, it could not bo larceny, as ho got it lawfully. Then if he made away with tho money-order, he might possibly be guilty of larceny as a bailee. But in this case he was ■authorised to get tho order,- and he ireturned.producing £4 as the result. You will observe the fraudulent intent in this, and it may be that the accused was bailee of the money when he received it, although toe could not be guilty of the larceny as ibailee of the telegraph order, because he did his duty in getting it cashed. He may, be guilty of larceny as a bailee of 'the money which he retained, and which he ought to" have returned. There are two •cases against persons accused—one of perjury, and one of a breach of the Pawn-, •brokers Act. In regard to the second of these, I may point out something to you. I do not know whether any of you wero on the Grand Jury either last sessions or the sessions before, when the same who is charged in this instance was tried for. larceny of the very '• articles in respect of which tho present charge is laid, and on the very same evidence that is now brought forward to prove a breach of the Pawnbrokers Act. So far as I can see from the depositions, the evidence is the same, and if you find from an examination of the witnesses that it is so, it will bo your duty to throw out the bill. A man has no right to be tried twice on tho same evidence, even although the crime in the second instance is styled by a different name. With regard to the crime of perjury, the essence of the offence is thus defined :— «' Perjury is an assertion upon an oath duly administered in a judicial proceeding, before a competent Court, of the truth of some matter-of-fact material to_ the question depending in that proceeding, which assertion tho assertor does not believe to be true when he makes it, or on which be knows himself to bo ignorant. It is e?sen tial first, that tho accused should have been on oaths* duly administered in a judicial proceeding. Then tke fact alleged must be material to the question atiesue. But tho person asserting it must himself believe it to be not true. Thus if the statement of untruth be in regard to something which is not material, then it is not periury; and neither is it perjury if tbe^pereon really believed at the time that his statement was true, however false it micht bo. In the case which will be brought boforo you, accused apparently niado false statement in regard to the seizure and sale of a horse. It appears that ho had acted as an assistantbailiff—whether rightly or wrongly does not matter-aud had seized this horse under one warrant, but,' when under oath in the proceedings in regard to this horse he swore that he seized it under another warrant. But the question at issue in the case being heard was( not as to what action the accused had seized, but whether the horso was seized and sold by the accused so that the question as to the action in which the accused seized and sold is not material. Nor is it material whether he was really authorised to mako the seizure if he believed himself to be so. If, however, you al-e satisfied upon the evidence in the case before you that ho stated that which was-1 not true in a material question of the action then being heard, and you are satisfied that he knew perfectly well what he stated to be untrue at the time, then, of course, you are entitled to find a true bill. There is £ very serious case of assault, occasionincf serious bodily harm, in which the evidencelis tolerably clear, and upon which there isfto need to remark. There is also one casafjf the serious crime of rape, which is charge*! against one man. The circumstances -fixe very peculiar, and call for your earnest attention. .1 will. simply Amind you that the essence of %c Jfence: is "the act of having carnal kiTwledge of a woman without her-. :_: conscioujfpermission, such- permission not

being extorted by force or fear of immediate bodily harm." Therefore, it mast be without the willing consent of the woman, and even if she did consent, that consent must not have been gained either by force or by fear of bodily harm. If there was willing consent, of course there is no crime. If, oe the other hand, the woman either resisted or even consented through force or by fear of immediate bodily harm, then the crime would be against the accused. The circumstances, as I have said, are very peculiar, but I will not enter upon them before you have seen tho evidence. The last case to which I will draw your attention is one similar to several which have been before this Court lately, viz., a charge against six persons of forcible entry. These persons appear to have been acting as the servants or agents of a joint stock company here. I am informed that some of you gentlemen may possibly bo interested in that company. If so, your duty is to retire when that case is sent before you. It is your duty not to tako part either in finding a true bill or no bill. Tho offence of forcible entry is thus defined:—" Everyone commits the misdemeanour called a forcible entry who, in order to take possession thereof, enters upon any lands or tenements in a violent manner, whether such violence consists in actual force applied to any other person or in threats, or in breaking open any house, or in collecting together an unusual number of persons for the purpose of making such an entry." You will observe that it consists in plain words in this: that if there be a person in possession of land or a house—whether he is rightfully or wrongfully in possession, so long as he is in possession—and if any other person (even the person having tho right to possession) come with a number of other persons armed with force, such n taking possession is called a forcible entry. Our law endeavours to put down processes of righting one's-seff by force and with a strong hand, and it provides the means of expelling trespassers from property. But even if the rightful owner come along with a multitude of personsto overawe the trespasser or endeavour to drive him out with firearms or by threats, then he is guilty of a forcible entry. In tho case under notice there is a dispute as to owner, ship or possession which does not seem very clear on the depositions. Such disputes ought to bo referred by tho parties concerned to the arbitrament of the law, and they cor tainly cannot be allowed to attempt to tako possession by violence, as it might lead to great crimes. These are all the cases which will como before you on this occasion, gentlemen. If you will retire to your chamber, the bills will bo laid before you.

The Grand Jury then withdrew. Perjurv,—Daniol Scallon surrendered his bail and appeared.—His Honor said that tho Court of Appeal had taken bis case into consideration, and ordered the conviction to be quashed.—He was therefore discharged. True Bills. —The Grand Jury found a true bill against William Goldstones and also against John Matthew, a native, stealing from the person ; William Evans, burglary ; and William Skclly. Indecent Assault.— William Goldstone was arraigned upon two indictments charging him with beating and ill-treating and committing an indecent assault upon Margaret McMillan on the 16th of January last, and to which tho prisoner pleaded not guilty.—Mr Hudson Williamson opened the case for the prosecution. ~- Tho prisoner was undofonded.—Margaret McMillan, a little girl of 12 years of ago, residing in Alexandra-street, Auckland, deposed that on tho loth January sho saw tho prisoner at tlio coinor of Uppor Queonstrcot. It was about 6 o'clock in tho evening. She was going home. The prisonor followed and assaulted her. Ho put_ his hand up her clothes. Witness described tho assault with much emotion. Sho got away from him, and ran to hor mother. — Edward Jones, gum porter, dejiosed that he know tho little girl, but not the prisonor, Saw tho girl at tho corner. Prisoner was behind hor. Saw tho assault committed.— Detective John M. Walker deposed to arresting prisonor at half-past six on tho ovening of tho Kith January, at the Symondsstreot end of Aloxandra-street. A crowd gathered round. The littlo girl pointed him out, and anothor girl said: "Ho has served mo in tho samo way." Prisonor had boon drinking, and said: "This is a terrible disgrace."—This was the case.—Prisoner oxprcsscd his deep regrot. It was the first timo ho had bucn in a court of justice. Ho was itnablo to address the jury, and would loan) the case in thoir hands.— His Honor rofcrred to tho ovidonco, and, having briefly summed up, tho jury retired to considor their verdict. Stealing from the Person. — John Matthew, alias Hippio, a nativo, "was arraigned upon an indictment charging him with stealing from the person of Richard Powell, on tho 2nd of January, tho sum of £1 Os, and to which prisoner pleaded not guilty.— Mr Williamson, Crown Solicitor, stated the simple facts of tho case.—Mr Brown interpreted.— Richard Powell, butcher, of Aratapu, deposed that be knew tho prisoner. Saw him on tho evening of tho 2nd January, opposite Savillo's hotel. Had not been drinking with him. There was a young man with him. On going home he was followed by tho .prisoner. The distance was about sixty yards. Prisoner entered the house without invitation. On retiring to bed, the prisoner came into'his bedroom and took 29s from his trousers pocket. Ho seized prisoner by the wrist. The coins were two-shiiling pieces—his day's takings. A struggle ensued, but prisoner kept his hand clenched. He called out, and his son came. Prisoner then showed 29s ; then ho ran away with the money, and left his hat behind him. Witness informed the police. — Richard Powell, junr., gave corroborative evidence. Tho man who camo home with his father was George Felton, who was acquainted with the prisoner in the gum trade. Felton escaped from the houso during the struggle. —Prisoner intimated through Mr Brown that he wished to call Felton and Tom Harrison, but neither were present.— Prisoner then said that ho took the money from Mr Powell, who struck him. The money was taken from him.—This being the case, His Honor reviewed tho statements, ■nnd remarked that it was singular that Felton, the apparently only independent witness, had not been; brought forward in evidence. —The jury retired to consider the evidence. Subsequently the jury returned, a verdict of guilty.—Sentence was deferred. Arson.—Henry Wood was charged with arson — Alfred Hastings Stevenson, builder, of Gladstone-street, deposed to seeing tho prisoner in the Mount Eden Road on tho day before the evening of tho fire. He was curled up in his blanket. He was in a most miserable condition. Presently he moved off in the direction of the houses that were destroyed.—Constable Luke McDonnell deposed to a conversation he had with prisoner, in which ho admitted sleeping in the houso on the previous night; that heliad a good smoke there, and burnt his finger with a match. Left the house because it got too hot for him. Arrested him under tho Vagrant Act. He said the fire was a good thing, and would be good for trade.—On the application of the Crown Solicitor.the recognizances of two witnesses, Andrew Gilmour and Wm. Frederick Peace wero estreated.—His Honor summed up, and the jury found the prisoner not guilty.—Prisoner was then discharged. Shooting with lifTENT.—William Henry Jones was arraigned upon an indictment charging him with shooting with intent to kili and murder John Macdermott, at Onehunga, on the 21st November, 1883.—The prisoner pleaded guilty.—Mr C. E. Button i appeared for prisoner, and called evidence as to character. Rev. Henry Miller, Congregational minister of Onehunga ; James Mclntyre, engineer; John Leaning, ironworker; John Macdermott, prosecutor, spoke highly in favour of prisoner's general character.—Mr Button made a moving address on behalf of the prisoner: Link was the only excuse for the crime, which prisoner would not have committed in his sober moments. He could only say that two evil spirits took possession of the man—the spirit ot passion and the spirit of drink. He hoped the Court would take his previous good character into consideration, and deal as lightly as possible with him, and that he might hope at least that in the future he would have an opportunity of retnenhg the reputation bo had lost. He might say that prisoner has a wife and family with no other means of support beside his labour—Prisoner said he was deeply grieved at what had occurred. It was the result of drink, and unhappily others would have to suffer for his folly. He trusted that God would e^ him onward in the future, and that he was thankful that his life was spared - His Honor in his remarks commented upon tho enormity of the crime, aid said it was his duty to administer justice. Mercy was the prerogative of otherbands. T_e sentence uponhimtwo>uld be 14 years' penal servitude. 11 wonei nas then led away from the dock. (Left sitting).