SUPREME COURT.

Dominion, Volume 1, Issue 55, 28 November 1907, Page 7

SUPREME COURT.

CRIMINAL SITTINGS. The Court resumed its sittings yesterday morning, His Honour Mr. Justice Cooper taking his seat at 10 o'clock. ARSON AND ATTEMPTED ARSON. LENIENCY EXTENDED. Frank Carroll and Francis Gordon Lyons, two youths, were set forward. On the previous day the. jury had found prisoners guilty with a strong recommendation to mercy, on charges of having set fire to an outhouse belonging to one Sue Sun Sing, of having attempted to set lire to the structure, and of having aided and abetted one, William Walter .burgess, to commit the oifcnce. : Mr.- Hordman appeared for Carroll and Mr. Wilford for Lyons. Evidence as to character was tendered.' Mr. Herd man said that his client (Carroll) had been before the Magistrate for assault and for wilful damage. His Honour: The person whom ho assaulted was a Chinaman and tho property which he damaged belonged to a Chinaman. It seems to 1110 that ho has a hostility towards persons of that race. Air. Hordman, continuing, pointed out that Burgess, the principal offender, had been admitted to probation, and that Lyons would in all probability bo dealt with in the same way. Ho (counsel) woiild, therefore, ask the Court not to send Carroll to prison, but to convict him and order him to come up for sontoncc when called upon. Mr. Wilford mentioned that his client (Lyons) had not been beforo 'the Court before. Ho asked that ho bo granted proba 7 tion. Counsel pointed out that tho prisoners had not added to their, wrong-doing by making misstatements. His Honour: The offence of which these young meii' liavo been convicted is a very serious one, and the fact that it was committed against a Chinaman is reason for the Court to mark its disapprobation of any conduct which indicates malicious feeling towards persons of an alien race. 1 may mention at this stage that I do not intend to coihmit the young men to prison. Burgess, tho principal offender, was admitted to probation by Air. Justico Button. lam not expressing disagreement with that decision, but 1 would jnst like to point out that tho I'robation Act was, in that case, stretched to its utmost limit. I shall admit Lyons to probation for a period of twelve months 011 condition that he pays half the costs of tho prosecution, and does not go out-of-doors after 8 o'clock at night without tho permission of tho Probation Officer. Carroll was in January fined for assaulting a Chinaman, and in July for damaging a window the property of a Chinaman. ' It is evident, that 110 requires to bo restrained. I shall not admit him to probation, but adopt his counsel's suggestion, viz., order'him to "come up for sentence' when called upon, and, at tho same time', order liiin to enter into a recognisance to keep the peace for twelvo months towards all; His Majesty's subjects, including the Chinese, and to find a surety in £50. ' Addressing tho prisoners, His Honour said: I can't understand' why you committed this olFoneo. I am afraid that thero arc indications that you were about the streets 011 the night in question, and that you had had liquor. \ou are tho sons of respectable people, and, if that were so, it is a terrible thing. It is clear that Burgess and you doliberately combined '.together for the purpose'' of burning" down' premises 'occupied' by Chinese. At tho time you could not lmva realised the enormity of your conduct. As a result of your action not only valuable property but also life might liavo been destroyed. To start a firo 111 a crowded city like Wellington is a very grave offence—a terrible crime. If you had boon older, I should have sent each of vou to gaol for a long term. I hope, that yon will profit by the lesson you have learned. It would be well for mc to point out to yon, and to others similarly inclined, that Chinamen have to. obey tho laws in tho same way as Europeans and that so long ris tlu'y" arc allowed to reside ill the Dominion they arc entitled to the protection of tho laws. I admit tllfit the Probation Aqt. is. being strotehed in extending to you, Lyons, the benefit of its provisions. In ordering you, Carroll, to come up for sontence when called upon, I am giving you a chance to reform. J.r you, Lyons, break tho terms of your probation, or you, Carroll, commit a breach'of the criminal- law, neither will recoivo leniency.

BANKRUPTCY CASE.

W. G. TUSTIN FOUND "GUILTY." QUESTIONS RESERVED FOR COURT OF APPEAL. William Gcorgo Tustin, painter and paperhanger, was charged witii that, heme a person adjudged a bankrupt at Wellington on j*lay 14, Uu7, he did "vvitliin three years bctoro the commencement of his bankruptcy fail to keep 'such books or accounts as aro usual and proper in the business carried on by him and as sufficiently set forth his business transactions and financial position; and further, that being a - person adjudged a .bankrupt ho could not have had, at tho time when certain of the debts wcro contracted, reasonable or proper ground of expectation of being ablo to pay the same as well as all other debts j and, further, that, being a person Adjudged bankrupt on the said date, lie could not have had at the tiino wneu certain of his debts were contracted—namely all debts contracted with H. l'rico and Co.' Limited., and all other creditors after January 1, 19UG, any reasonable or probable ground of expectation of being ablo to pay tho same as well as all his other debts. : Jlr. T. Voiing, who appeared for the prisoner,' objected to'the form of the indictment upon the ground that no offence was alleged within tho Statute, and that the particulars of the debts contracted at tho time complained of were not given. . Mr.;Myers agreed to supply the particulars required; As to tho first point, leave was reserved to apply to havo tho indictment quashed at a later stage. Prisoner pleaded " Not Guilty." The following jury was empanelled Joseph Allen (foreman), J. Perry, J Brown A. Plank, A. W. Low, 1). Scott, J. w! Stewart, W. E. Nicholls, J. Mollior T. A. Radclili'e, W. 0. Cook, and J. Clarke. Mr. Myors, in outlining the case for the Crown, mentioned that prisoner had carried on business in a large way for a number of years. James Ashcroft, Official Assignee, gave ovidcnco that prisoner was adjudicated bankrupt on creditors' petition on May 14 1907. Witness did not make a'minute examination oi' prisoner's books, but was of opinion that they did not sufficiently sot forth his business transactions or disclose his financial position. Prisoner had not kept a profit and ioss account, nor, a stock account nor a book showing amounts owing to creditors. It would appear that tho hooks had not been made up front day to day. In order that a complete statement of his position might be obtaiued, it was necessary to employ Mr. Kombcr, an export accountant. Cross-examined, witness stated that prisoner's books were better kept than those of some bankrupts, but lie would be sorry to say that his books had been kept hotter than those of tho average bankrupt. As a rule it was found that the books of small traders had been slovenly kept, but it had to bo remembered that prisoner was in a largo way of business. The items in tho bill book should have been entered in tho ledger. W. A. Hawkins, Deputy Registrar of tho Supremo Court, produced thfi file of papers

relating to the bankruptcy, also prisoner's depositions at the public examination. Mr. Young objected to tho depositions being put in, and His Honour noted tho objection. r> 1 Ramsay, clerk in the employ of Robert Martin and Company, Limited, deposed that prisoner owed his firm .(MS in January, 191)6, whilst at the date of his bankruptcy lie was indebted to them to tho extent of £95. Cross-examined, witness stated that prisoner bad been a customer of theirs for a long period. Ueorge W. Minter, director and acting manager of 11. Price and Company, Limited, gave evidence that prisoner was indebted to them to tho extent of £771 in January, 190G, whilst at the date of his bankruptcy he was owing them £930. Prior to Christmas, 190(5, prisoner promised to reduce his liability by £500. Cross-examined,'.witness stated that 1 subsequent to January, 1906, prisoner transferred to them a security estimated to produce £<100. Some small traders ivho did not understand book-keeping used their file of invoices to show their liabilities. Charles M. Montifioro, manager of the Ocean Accident and Guarantee Corporation, deposed that, in June, 1906, prisoner incurred a debt with the Corporation of £23 Bs. Gd. for premiums, and that 111 Deeember of the, same year, he incurred a further debt of £15 lis. for renowal. premiums. Henry Komber, accountant and auditor, stated that, at the request of tho Official Assignee, 110 investigated. prisoner's books. .Without an elaborate investigation it was impossible to ascertain from them prisoner's business transactions and financial position. Tho books used were tho customary, ones. The ledger only showed the debts due to prisoner. The bill ,book was supposed! to snow bills-accepted, and the cash book was supposed to show amounts received and paid out through tho bank. The. last-mentioned book was not .a correct record;. it ■ showed more cash paid into the bank than appeared ;n other- books. Several accounts had not been kept, including profit and loss account, creditors' account, expenses account, and stock account. He had ascertained that, on' January 1, 1904, prisoner's deficit amounted to £1177; on October 31, 1905, to £21*14; 011 January 1, 190G, to £2681; and on date or tho bankruptcy to between £4000 and £5000. Cross-examined, witness stated that prisoner's books could have been properly l;opt for £4'per month. This closed the case for tho prosecution. Mr. Young said that a man need not leavo off trading because he was 111 difficulties if ho had reasonable hopes of surmounting them. A trader carrying 011 business with a deficiency was, he submitted, only required to explain tho circumstances—to give somo fair excuse for his conduct!—as a man might carry on with good intentions, _ and might have well-grounded hopes of getting over nis difficulties!" Counsel'pomtfcd out that prisoner was a' man of sanguine temperament—a man whoso geese wore always swans—-and although his position was bad he readily persuaded himself that he would bo able to pull through and pay all his creditors. His only 'olfoneo was that he had 1101. become bankrupt two years previously. The fact was that lie continued to carry on in the hopo that he would bo able to pay his debts, and that lie carried on in tho interests of his creditors. He might liavo got rid of..the whole of his liabilities by filing two years beforo. With regard, to the account of Messrs. Price und Co., it had' been shown that that firm's liability had been reduced, as tlicy had obtained a security in the meantime. Prisoner, in tho course- of a statement r o the jury, mentioned that, at ono timo, lie, had between fifty and sixty men in his employ, and paid away over'£loo per week ,n wages. He should have mauo a profit of at least £20 to : £25 per week. - Several large contracts had to be completed within specified periods', and as thero was a dearth :of competent workmen he was compelled to.engage men who were worth not more than half what they were paid. Then, again, he.lost £6fto 011 tho Trentham race-course contract, £450' 011 tho D.I.C. contract, £150 011 a contract for the erection of houses, also smaller sums on other contracts. The losses 110 had mentioned were sufficient to make up the deficit. If 110 had known lie would not bo able to reduce his liabilities, ho «vould have filed tlireo years ago, and saved himself so much worry. Ho., owed money to eighty-one creditors. Seventy-seven, to.,,whom V .owed an aggregate of nbout £5000, shad agreed .to accept his assignment, but the other fotff, who rooresented £131, had refused. It was Lis 1 intention to do everything possiblo to pay his creditors in lull. 1 ' His Honour summed up at length. Ho put the following issues to the jury:— NO. 1: Did tho prisoner within three years beforo tho commencement of the bankruptcy fail to keep such books of account as aro usual and proper in the business carried on by him, and as sufficiently sot forth his business transactions and disclose his financial position? v No. 2 : Hiid tile prisoner at tlie .tiriiowhen he increased his liability to- MeSSfs." Price and Co. from £771 to £935 any reasonable or probable ground of expectation of being able to pay such increased amount as well as his other debts? No. 3: Had the prisoner at the timo when he contracted the debts due to' the -Ocean Accident Insurance Company any reasonable or. probable ground of expectation of being ablo .to pay such debt as well as his other debts? No. 4: Had tho prisoner at tho time when he contracted tho debts duo to Marten and Co. for goods supplied during the year 1906 any reasonable or probablo ground of expectation of being ablo to pay such debts as well as all his other debts ? No. 5: Had tho prisoner' at tho timo he contracted,the debt due to Barber and Co. any reasonable or probablo ground of expectation, of being able to pay such debt as well its,all his other debts? No. 6: Had tho prisoner in referenco to any of the matters hereinbefore stated any intent, to defraud ? . Tho jury, which retired at 5.12,. returned at 8.25. They returned the' following answers No. 1, Yes; Nos. 2, 3,. 4, 5, find 6, Mo. ' ' His Honour: Tho findings amount to a verdict of " Guilty." I direct you to bring in a verdict to that offect. Tho jury returned a verdict accordingly. ; His Honour: I shall reserve for tho Court of Appeal the question as to whether my direction is right; that is to say, I shall state a case 011 the question as to whether, under the particular clausos under Which tho prisoner was indicted, it is necessary to prove intent to defraud. 1 reserve the point, because of tho dictum of Mr. Justice Williams iy re Allen. Although I have tho utmost respect for his opinion, I do not think it applies under this Statute. Mr. Young asked His Honour if he would also reserve the question fts to the admissibility as evidence of the depositions of prisoner wbon being publicly examined. Counsel contended' that a certain portion of tho depositions was. inadmissible, arid, therefore, that tho whole were, notwithstanding the special provisions of, the Statute.,. His Honour: I entertain 110 doubt but that the whole of tho depositions are admissible. If part of the depositions is admissible, the whole must.be. That is my opinion, subject, of course, to review upon argument. Mr. Myers raised tho question of costs. His Honour: I shall rosorvo the question in the meantime. If tho conviction be uphold, I may—but I liavo not yet considered tho matter — admit prisoner to probation. In that event, I shall probably order him to pay a proportion of the costs. I shall postpone sentence in this case until the questions rosorved have been decided. I shall admit prisoner to bail 011 his own recognisance until the morning, when ho will bo required to' outer into his own recognisance for £50, and one surety for £50, to surrender at such time a$ the Court directs. Tho Court then adjourned until 10 o'clock this morning.

CIVIL SITTINGS.

DIVORCE COURT. (Before.Mr. Justice Button.) UNDEFENDED CASES. .Mary Ellen Goodcy, of Wellington, represented by Mr. A. L. Herdman, sought a dissolution of jior marriago.with James Henry Goodoy, painter, at present residing at Sydney, New South Wales, on tho ground ot desertion. According to the petitioner's evidence, the parties were married ot Palmerston North on

January 3, 1889, and afterwards lived there and in Wellington.; ;T,here were two children, aged now eighteen" and fifteen respectively. Seven years ago the respondent wont awav, and it was only through his mother that the petitioner recently" ascertained ■ his whereabouts. ' . ',' Corroborative . testimony was given ; l>y Louisa Harriet Henderson-." : , r His Honour granted a decree,nisi. •• t- • A " CATTLE-DRIVING " WIFE. ■ Jamos Roberts, farmer, Mahgatiki,-.in the Mnkuri district of Pahiatiia; 'sought a 'divorce from Margarot lWberts -oil'"the"ground -of desertion. . Mr. Herdmftn' appeared for the petitioner.' In this case,.the, marriagp-.t00];.. jilacfl: at I'almerston South, Otago, on'Jilly 3Qk 1878.and the couple afterwards lived' ht*Palmer-> ston South, Shag" :Valley,' Tiirhriaki; i and J'ahiatua. There;- were .-six children,) tho. eldest of whom is now twenty-five years yjf. age, and tho youngest ten, The .'husband stated that his'wifo left him 'jn' October, 1889, without' any reason or : warning; "taking tho second eldest' child with ''her. 'She re-v turned some six; .nfonths. afterwards for the purpose of transferring.. sbi}io : rattle,, but he refused to allow lief'to remove them JHo was_ unaware of her whereabouts'at, present. Evidence in--support w<is;'given 'by' the oldest daughter,.- Sarah Jane Robcfts, and'-a decree nisi was.granted on tlio usual, terms.. A WELLINGTON CASE/. :.: -yRubjr Edith Smith; a .young woman .residing in Wellington," sbughtr a- dissolution of her marriage w-ith: Goorge Henry■■ "Smith,", .s'toremau, also living mi the .city,: on ; the 'ground of s adulterv. — -. -. The petitioner'. gave evidence'in reply to Mr. Hcrtlman',' who appeared 'on her 'behalf, that she was married to Smith; on August 16, 1904, and lived 'with him until June .of last year, when she left on account of his drunkenness and cruelty. Thero- was ono," child of tho marriage. : ■ She: understood'that lie was now living with another woman;' Samuel Free, privato detective, deposed to Smith's relations with ."ttie-other-woman referred to, and a boarding-house keeper, named M'Lennan testified, that tho couple,liad lived in her houso as husband-and wifo.-.-v-..-His Honour granted. <a depreo..,nisi, with costs on tho lowest scale, against tho respondent. A W'IFE'S DESERTION. - ' Randal Richard Winteringliam - Welch, • a Wellington clerk, sought Vdecreo for restitution of conjugal rights agaiiist his wife, Laura Welch, who, _ he stated, had left him ,n February last"without ju'st cause, and refused to return. The marriage .took place at Wellington onAugust 15, 1901, and there Vero no children/ The Court granted ah. order for restitution of conjugal rights. { , Mr. Neavo (Young'and Tripe) appeared -in, support of tho.petition... ■ .- Tho Court adjourned until-9,30. this morning, when the cases' of\hayma.. Dyson Smith v. Sidney Smith, David Duncan/v. Emily Louisa Duncan, and .the. adjourned' partnership dispute of Cloake "'.v/ Cloakb will jo heard. ..f" .'Xl.z