SUPREME COURT.

Press, Volume XXXI, Issue 4280, 18 April 1879, Page 3

SUPREME COURT.

CBIMINAL SITTING. Wbdb-Sdax, Ajpbh. 16. [Before IDs Honor Mr Justice Johnston] THTJB-DA-, ApBTTt 17. The Court resumed at 10 aan. ssranra sibb to stock. The trial of Isidor Schwarte was oontinued. The evidenoe of Sergeant Hughes and Constable Marr having heen taken, Mr Garrick aonoonced that his case was dosed. Mr -Joynt would submit that there was no case to go to the jury. His Honor —Upon the first count ? Mr Joynt would deal with the indictment seriatim, Ac to the first count, that, he should contend, was bad. His Honor—Do yon intend to support the first oount, Mr Garrick ? Mr Garrick —I think that it is debateahle. His Honor—Well, but Mr Garrick, I think the decision in Childs' case goes to the extent of deciding that a count snoh as this—which the one in Childs' cose was—could not be np* held. Mr Garrick—l did not think, yonr Honor, that the decision in Childs* case went so far as this. His Honor—Well, we mast, examine into the matter. . . Mr Joynt said he should submit that the first count was had, and as to the seoond oount he would pass over that for the present. [Case cited in support of contention ; Regina t Childs, L.B. 1 C.0.8. 307.] He would now go on to deal with the third, fourth, and fifth counts, which were similar in words except the names of the insurance companies. His Honor—And that was not at all necessary. It is specially provided by statute that it is not so, and these names being put in are simply traps to lead to failure, aa the names most be proved as laid, and if not then the count would be had. Mr Joynt quite agreed •' with his Honor. How he would submit that the count he had referred to disclosed no offence. It said " overt acts." His Honor—But, Mr Joynt, this is only a continuation of the introduction of the indictment. Mr Joynt—But, yonr Honor, it says " feloniously committed certain overt acts, with intent to defraud the insurance company." Now your Honor the insurance was not on the house at all, bat on the goods. His Honor—Yes, bnt Mr Joynt, let as look at it. The firat thing is setting fire to things in a building in such a manner as if the building had been set fire to the person would have been guilty of felony. Then it proceeds to recite the overt acts which were felony. Mr Joynt—All I want is your Honor's opinion as to the count. If your Honor holds that it means setting fire to the bouse with intent to defraud a certain company, I am satisfied. Mr Garrick—l admit, your Honor, that all counts except the second are bad. I shall rely on the second count. Mr Joynt—Then I shall endeavour to meet the second count. The seoond count is founded on the 7th section of the Malicious Injuries to Property Act. [Section quoted.J Mr Garrick in opening had drawn the attention of the jury that it referred to the 3rd section, which was that any person in possession of any ahop, and letting fire to it with intent to hijure any person ahall be guilty of felony. I shall submit that the seoond count is bad, inasmuch as there is not on the evidence any one proved to he the owner or insurer of the building, hence no one oould be injured, and therefore the count will not come nnder the statate as in evidence. [Quoted Bussell cm Crime to show that burning one's own house under certain circumstances was not aison.3 It must be shown that by setting fire to a house malice must be proved, and some injury to some other person must be proved. He submitted that there was no evidence to show that there was any malioe in his case, or attempt to defraud any one. Ho owner was shown on the evidence, hence on the case* a man could not injure himself, aad would not oome nnder the statute. ~ Hia Honor—lt is exceedingly strange after the decision in Childs' case that there has been no provision for dealing with setting fire to goods in a building. Mr Joynt—Yes, your Honor. I may point eat that Mr Bassell goes on to say that the setting fire to a building in a town by the owner where no other person oould be injured was bat a pore misdemeanour. His Honor—Your otmtentlon is, Mr Joynt, that the evidenoe does not show that there was anr other owner of the building than Schwarts, and that therefore there can be no defrauding or injury of any other person Was there any evidence giren of the owner in Childs'cart? ■ ,*.._____ Mr Joynt—Yes, your Honor, I thmk there was. It most be shown that there m an owner. My learned friend may try and bring the case within the sixth section, but here it says that it mnst be "malicious." X°*} oontond there can be tdo contention_of this kind, as there is no malioe shown. There is nothing here to say that a man may not set fire tohis own house. His Honor—Bat in a town. Mr Joynt—Well, your Honor, bat it is taid that even this only amounts to a grave Bat even so, there is nothing alleged in tho indictment that the prisoner ia indicted fo- setting fire to his own hoose. He is indicted for baring dene oertain aots with intent to defraud, vix, setting fee to goods in a building with intent to set fire to

' the building with intent to defraud. .Hojr. '; AereiS not ooe person who ■ia injured or defrauded, so far as the evidence, goes. Suppos.ing the building was burnt down then on the 'evidence, the only person injured would be the prisoner, because there ia nothing to show that he was not the freeholder. Mr Garrick, in reply, said that he would not take up the time of the Court. If bit Honor ruled that there was no evidence to go to the jury, he should not take any objection. His Honor—Gentlemen of the jnry, I deeply regret that, owing to the grossest possible carelessness in drawing the indictment, to whom attributable I do not pretend to say, the case will have to be withdrawn from -your consideration on a point of law. I wish to say here, in open Court, most emphatically, that it is disgraceful that one of the most important prosecutions of the session falls to the ground through the misconduct—for it is no less—of some one connected with the prosecution. I deeply regret that I must tell you on a point; of law that there is no caae to go to you, and that therefore you must return a verdict of "Not Guilty." This is a great publio calamity, gentlemen, because without pre- ! judging the case, I may say that, so far as the evidence hat gone, there is a strong prima < facie case. It may possibly have been answered when the evidence for the other side came to he called, but still I say that there was a very strong prima facie oase againat the prisoner, which lias fallen, through owing to the carelessness, the gross carelessness, of some one connected with the prosecution. It is high time, gentlemen, that some measures were taken to protect the public. Arson is a most serious crime, and Insurance Companies are one of the greatest blessings we have. It is, therefore, necessary that they should he protected. I very much regret that it is my duty to say on a point of law that there is Bot sufficient evidenoe to support the indictment. The jury then, under the direction of his Honor, returned a verdict of " Not guilty." His Honor—A circumstance has taken place in connection with this case which I may say is nnparallelled so far as I know in connection with the administration of justice. I refer to an indirect attempt which has been made to influence the mind of the Judge on the subject of the indictment by sending a letter addressed to my secretary into Court, and marked argent. I shall consider this matter farther, with a view to seeing what steps shall be taken. Mr Garrick said he desired, after what had fallen from his Honor on the subject of the indictment, to state that he had: not seen it, nor had it heen drawn under his supervision. He was only instructed on Sunday, and the indictment was prepared elsewhere. The Court then adjourned until 10 a.m. next day, when the special jury case of Parker t Buxton will be taken.