SUPPEME COURT (Yesterday).

Auckland Star, Volume XVIII, Issue 69, 23 March 1887, Page 2

SUPPEME COURT (Yesterday).

CRIMINAL SITTINGS,

(Before Mr Justice Ward.) RoDbery With Violence,—lv the ooeo of ' Frederick Ellis and William Small, , charged with foloniously and violently stealing 18a from one Henry Cuthbert, tho following ovidonce was taken subEOquent to our going to press yesterday : - John Boyle deposed to seeing Ellis take Cuthbert by the throat, and also Small put his hand in Cuthbert1 a pocket. He heard Cuthbert afterwards call out, " You ecoundrels have robbed me." The Bcullle took place in the passage off Abercrombie-Btreet. Witness paw a man named Kerr looking out of a window from which he could sco the a«sault.—Cross-examined by Mr Napier : tie believed that a robbery was going on.but lie did not interfere. Did not say in the lower Court that he had seen other robberies committed. [The evidence taken in the lower Court was here read, and showed that the witness had stated that he had witnessed several robberies, and eaid nothing about them.l John Korr alsD gave unimportant evience.—ConstableKeleo was preaelitwhen the prisoners were arrested. He heard Cuthberr, addressing Ellis, say, " You ruffian, you assaulted me, and robbed me of ISs. - Ellis replied, "I never Baw you before in my Mo" When Ellis was searched, only 3s 4d was found upon him.—lnis closed the case for the prosecution.— Aftor Mr Napier had been addressing some time, ho decided that it would be necessary to call the witness Charlea Mack, bb His Honor doclinod to allow his deposition to go in as evidence. This waa accordingly done, when it was discovered that Mack wbb not in attendance. Mr Napier requested that a warrant should be issued forthwith, ins Honor granted the request, and adjourned tho cafo for an hour to snable the polico to hunt up the witness. Aftor the lapse of about an hour and a half, however, tho police failed in finding Charles Mack, and then he strolled into the Courtyard in tho most unconcerned manner, and was run into Court by Detective Herbert. Ho was ovidontly under the influence of drink. Hia Honor asked him why ho had not boon in attendance, and his reply was that ho had not been paid for attend anco at tho Police Court, and he had a wife and family to support. His Honor told him that ho was not likely to be paid now, and orderod him into the witneHs box. He thon, in answer to Mr Napier, detailed a convocation he had with tho prosecutor.— Margaret Korr, wife of John Kerr, Aber-crombio-strcet, was then called, and dopoeod that a day or two after tho arrest of tho prisoners ehe had a convocation with Cuthbert, and ho told her ho did not know tho men who assaulted him from Adam, and would not recognise them at all, but ho had a witness who did know ihetn. In answer to Mr Cover, witneps said she was a Mrs Shoriy, and not the wife of Ketr. —Detective Herbert was callod by Mr Gover to give rebutting evidence, and deposed to tho witness Mack having told him that when Ellin's brother Bob and Mr Napior asked him to give evidonco, he told them ho would do them mure harm than good, as anything ho could cay would be against Ellia.— Both counsel thon addreesed tbo Court, after which Hie Honor briefly summed up, pointing out that tho evidence for the Crown was of tho clearest possible description. The jury rotired at 555 o'clock, and at 8 30 returned to Court and recorded a verdict of guilty.—Uis Honor then Eentenced both priaonore to seven years' ponal servitude.

THIS DAY.

Pekjdky.—A nativo named William Conrad was charged with committing perjary in a caso of trcfpaes which waß held at Mongonui R.M. Court on tho 18th January, )SS7, boforo Mr Henry Wedderburn Bis-hop, J.P. The prisoner appeared on bohalf tho prosecutor, Isaac Williamson, arjd swore that ho never translated any document regarding a reservation of right to die gum upon leaac Williamson's property, whereas it was alleged that bo did translate the aforoeaid document, and also that he did know of the reeervatisn and the boundaries of euch reserves.—Mr Gover prosecuted on behalf of the Crown, and Mr Theo. Cooper appeared for the accueed. Mr Hammond officiated as Court interpreter.— Mr Coopor stated that he had a preliminary objection to raise that he thought might reMilt in tho indictment being quashed. It was tha*' tho indictment did not show any jurisdiction of the Court in which the caee had been hoard. Mr Cooper went on to say that the indictment did not disclose any offence known to thtJ law.—His lionor would see that the charge that was heard before the Magistrate was laid under tho Polico Offences Act, 1884,eubEec tion 3, section li, which related to wilfully trespassing after having been warned not to do bo by tho ownerof theland. It was this Act which bad created the criminal ofTence of tioepaseing, for before that, property owners had their remedy in a civil action. There was really no r>uch offence known to the law as unlawfully trespassing upon another person's land. Mr Cooper then quoted a number of cases in support of his contention, viz., Bexton v. Goucb, and a New South Wales caee, Regina v. Armstrong, which both held that the witness's oath was not indictable if the Court in which it was taken had no jurisdiction. Poloy, on " Summary Convictions," also laid it down that if a charge falls nhort, tho omission is not remedied by an allegation, no more than the legal inference which uiuet be supportod by the premises!. He submitted that the insertion of the word " unlawfully" did not create tho perjury as signed upon an oath. Tho indictment eot forth a charge unknown to the Act, and an offence unknown to tho law.—His Honor asked Mr Gover why he had not copied the information.—Mr-Cover ropHed that he had nothing to do with it, but it was evidently a lapEe on tho part ol some person. He drew His Honor's attention to tho fact that the information waa correctly laid, but not copied uf on the indictment.—His Honor remarked that

" unlawful " trespass had been inserted instead of " wilful."—Mr Gover said that the objection was no doubt a strong one. He would, howevor, ask His Honor whether tho indictment could not be amended. —His Honor said that could not bo dono. It would bo practically croating an indictment. The Crown must bo roady with its indictment.—Mr Govor then aeked that titno niighl bo allowed him in which to look up the authorities upon tho matter.— His Honor remarked that would be keeping the jurors of the Court waiting, but con eented to allow M r Govor 15 minutes.—Upon rol.urningtoCourtMrGoversaid hewn* sorry to stato that ho could not discover any nulhoritics which dealt differently with tho question than those quoted by Mr Cooper. Carpenter v. Mason was slightly different, but it did not go far enough. He muse admit that tho anthorities wore against him, and would leave the matter in tho hands of His Honor.— His Honor said that at least words must be used importine that trespass had been comlnttted.—Mr Gover °aid unfortunately the words of tho Act had not b.en used.— His Honor said that the indictment specified an olFenco from the special clauses of the Act, and "unlawfully" would not stand for " wilfully."-Mr Cooper said that the matter simply resolved itself into tho fact that Wi Hsngi Ruini did not " unlawfully " trespass ;on Isaac Williamson's land, and theretoro tho J.P. had no jurisdiction, so that tho accused could not have committed perjury.—His Honor said that he had no choice in the matter. The words of the law were that " the magistrate may upon hearing an information for trespass, but here practically no offence was disclosed. Tho case was really noujudice, and therefore the Indictment must be quashed. —Mr Cooper then asked that the prisoner might bo discharged.—His Honor said, "Certainly the prisoner will bo discharged, but it will be weft for him fr> remember that bad he been convicted he would have been severely punished. Certainly he has escaped by the ingenuity of his counsel. '—The prisoner then left the dock and the criminal sessions terminated.