SUPREME COURT.-Criminal Sessions.

Auckland Star, Volume XVII, Issue 242, 14 October 1886, Page 3

SUPREME COURT.-Criminal Sessions.

(Before Hia Honor Mr Justice Ward.)

THE EDEN TERRACE FIRE. Acquittal of AcciLEoa.

After we went to press yesterday afternoon, the hearing of the charge of arson against J'hos. J.Clarke was continued. Mr Cooper made a long and very able speech for the defence, showing the jury how weak the circumstantial evidence against the prisoner was. Mr Gover then replied, taking the points of the deiilidaut's counsel seriatim. There were three pjfiiiUs against the prisoner: firstly, his giving ÜBTilarm; secondly, the fact of the goods being; packed up; and thirdly, the house being found stripped dean of things when entered during the lire. His Honor summed npugainst the prisoner, and the jury retired v few minutes Hflcr live ; they returned»it a quarter past suven o'clock to ask for a repetition of part uf Hii Honors summing up.

At v quarter pasi nine the jury brought in a verdict of '; Xol Guilt}-," or, in their own words, •• There is insufficient evidence to convijt the prisoner." liis Jlonour, addivs.-in;,' the piUoner. .«aid : ■' it is fortunate for you that the jury have taken a merciful view of your case; you are discharged." Uneof the jury men was several times seriously indisposed during the progress of this case. SLANDER. James Kay appeared this morning in answer to the charge of wilfully, maliciously, and wickedly slandering William Greene bya certain document sent, to Mr Henry Sanky, in which the prosecutor was called a swindler, liar, thief, and cowardly blackguard, and various other opprobrious epithets. Mr Thco. Cooper appeared on behalf of the prosecutor, nnd Mr Laishley for the accused. The prisoner pleaded guilty. Mr Cooper said that the defendant having expressed regret for his action, and having apologised and paid all costs of previous proceedings, he had been instructed by the prosecutor to request His Honor to inllict only a nominal penalty. •

Mr Laishley said th«t the accused in doing this action laboured under the idea that ho had been wrongly treated by the prosecutor with regard to some land transactions. It was only due to the accused to state that these land transactions were now to be submitted to arbitration. It was also just to state that the accused had commenced a cross-action, but that both cases would now be withdrawn.

Mr Cooper said that the prosecutor had always been willing to meet the defendant fairly with regard to the money transactions, and that his trie-id had stated facts when he said that these matters had been agreed to be submitted to arbitration. He might also mention that the defendant had given bonds not to repeat the offence.

His Honour said that under the circumstances as detailed by the counsel, he would feel himself justltled in inflicting the nominal penalty of sGI and costs. Had it not been for the defendant having already given bonds for his future conduct, he would have been compelled to bind him down to come up for judgment when required. ALLEGED PERJURY.

Arthur D. Bennott appeared in answer to the charge of alleged perjury with regard to the P.N. held by Mr Alexander fllackay. drawn by Reginald Fitzroy liolton. Prisoner pleaded not guilty. Mr Button, instructed by Mr lligby, appeared for the defendant, and Mr Gover. instructed by Mr H. Williamson, prosecuted on behalf of the Crown. Grout care «as exercised by both counsel iv selecting thejury ; a number being challenged by each side. Mr Gover, in opening the ense for the prosecution, said Uiut the question to be laid before the jury would bo simply whether the accused knew that the promisory note was endorsed by Albert Walker at the time that he took the oath upon Which he was now charged as having committed perjury. The facts o£ the case were the accused was appointed the trustee of the bankrupt estate of n man named Holton. The evidence would tend to show that the note waa duly endorsed. But it would be for the jury to duly weigh the evidence and find out whether tlmt endorsement waa upon the note on or before the 13th August, or whether it had subsequently been fraudulently placed upon the note, in fact, forged in order to make a claim upon the estate. Mr Brewer, Registrar of the Supreme Court, gave testimony as to the bankruptcy proceedings of a man named Robert Fiuroy Uulton. He had been before the Court, both criminally and civilly. On the charge of false pretences, he was dismissed, the judge ruling that there was not sutliciont evidence to convict.

Mr Button contended that as that was the only evidence to prove judicial proceedings, it was a question whether that was rcaly a judi-

ciul proceeding. Under the Debtors and Croditors Act of IS7O, the trustee is the person who is to decide with regard to the omission or rejection of proofs or debt. Ti.e rule was thut notice of appeal should be (riven within II days. Then iirosu Hie preliminary question of rights of jurisdiction, if Itic Court hud no jurisdiction ut the time the perjury wusalkged to have, been committed, then, as a matter of fact, no perjury could have been committed. Merely giving of intentions to appeal was not complying with the furl. In this c;isc notice was not hoard until two days too late. Even then the notice was dismissed na bein," impropurly taken. Then there was practically no notice before the Court. Mr Button then quoted the following case:; in support of bis contentions:-Queen v. Blank. T. Coc.'s criminiil cases, p. oO; Heginii v. White. Coo's crlminnl cases; Hegina v, Cohen, Slarkie's reports, p 511 ;O. HeKina v. Bishop. Carrington and Murshnll, p. 30:?. It could not be contended that the mere fact of Holton's bankruptcy had fiven the Court the judicial powers required n tliis ease the i roper preliminary steps had not been taken, and therefore the Court had no powor to hear the appeal, for it was virtually an appeal. This clause, it appeared, was really a new power vested in the Court to hear anj appeal from the trustees in bankruptcy. Mr Cover in reply, said that it appeared to him that his learned friend had not quite taken in the moading of tho rules. The acts and rules must be read together. The act was that notice should be given in order that tlio other side should not bo taken by surprise. Taking these acts suirt to havo been slovcncly druwn tip, t\\v question was whether the court would not give a broader interpretation to them, for after all this was purely a technical point.and ho thought that the cou.it would not try to increase these technical points. This question did not at all affect the real fnots of the case. His Honor, " Oh no, a false oath is a falso oath under all circumstances." Mr Cover submitted that the affidavit showed that Hie other side were uware that the proceedings were being taken, and therefore the Court had judicial powers, lie contended that the notice was not essential to establish the jurisdiction of the court. At any rate, he would ask His Honour to reservo that point. His Honor, " Yes." Mr. Button still submitted that the Court had no jurisdiction as notice was given two days too late. Tho notice was filed on the Ist September, but the notice was not then made to the Court. Notice of motion was not application to the Court. His Honor said ho did not feel inclined to stop the case for these contentions, but should the accused be found guilty lie would reserve tho right for bim to appeal if he wished. William Gray, chief clerk in the Official Assignee's office, prcduced a letter reccivod from 31r Bennett as trustee in the Insurance of Helton. The 1c tcr was put in and read. It stated that the expenses in Bolton's cstato would exceed the amount recovered.

Cross-examination by Mr Button : Mr Bonnett had told him taat Hiuro were many claims that lie would not admit, Mr Samuel Hesketh, solicitor, deposed to the prosecutor, Alexander Mackay, fcolnj a client of his in the matter of Bolton'a first insolvency. His Honor: How many times has ho been insolvent !

Mr Hutton : Four times, your Honor. His Honor: Insolvency appears to bo his nominal state. Mr Heskcth gave evidence regarding the promisory note, as already published. , > Cross-examined by Mr Button : He had heard something with regard to Mr Albert Walker in connection with a forgery. His Ifonor : This is not fair until that witness has been called. Then you may recall tlio pro sont witness. Waller Digiiai, solicitor, deposed to the accused swearing to the affidavit (produced) in his presence. Alexander Mackay next gave evidence at some length. At this stage of the proceedings the accused became attacked with a partial taint, and was, by direction of tho judge, accommodated with a scat. A glass of water was also procured. Mr Bennett then became slightly hysterical, and could not restrain his tears. In a few seconds he, however, was sufficiently recovered for the Alexander Mackay's CTilence lasted until the adjournment, when the jury were permitted to go to.her respective residences for their lunch. Robert Fiizroy Bolton was the first witness a rter ihe lecss. He deposed to drawing out the 1' N., and receiving £-'0 in consideration of it. He gave the note to Allen Walker, and saw him endorse tiie note when he paid the money Cross-examined by Mr Button: Ho. had fatlid five Itimcs altogether. Once it was irregular, nnd ho was compelled to lile again. He believed he got his discharge in Dunedin. Had not applied tor his discharge from Quconslowii. His mind was not sufficiently flexible for him to sta e:\vhethcr ho had paid any of htf Dunedin His Honor: You seem t> have filed about ones a year since the Atkinson Ministry closed 3 "witness continued : Ho had been before the courl on a criminal charge, but that was on account o£ a vindictive prosecution by Mr Hudon Williamson. Could not remember what the Judge had said. It was quite possible he had said,' It was gross fraud of you and your wife." He did also say, " You and your wife have been playing a nice little game between you." He was,not aware that he had-been charged with Ipersonation in the lower Court. Ho could not remember positively. I iliis Honor: ">ow, do you really expect the jury to believe that statement that you cannot re nemler such an affair.'1 Witness: " \Vrell, your Honor, that was lb years ago, and Mr Ueckham said I had been made a cat's paw of. and fully exonerated me of continued : He ditl know Mr Hic'key. Had said to him that ho would kick him from one end of the street to the other if lie Srt hzL,r lJ& Vt i£c hotmofor y hi;;, d He bad told Mrß. Shaldcrs, the draper, that the ES3SISS c^e apf'i« It was partly true, as Messrs Campbell and Russell had offered to attend to the matter foi lawyer and cable out to him that a relauyo SSj wSuldiet a yot,billa rway°V|e own estate from Mr IBennett. Mr McCausland hl^ CS bl e cha aii Cd Irn^^^d yiithop- a phic IJ^Kveb^i^d^nceX^na^ transferredfto Mr Alexander Mackie. [Left sitting.]