COURT OF APPEAL

Dominion, Volume 2, Issue 328, 15 October 1908, Page 4

COURT OF APPEAL

A NAPIER THEFT CASE. APPLICATION FOB, NEW TRIAL. CONVICTION AFFIRMED. The sittings of the Court of Appeal were resumed yesterday, when there were present: the Chief Justice (Sir Robort Stout) and Justices Williams, Denniston, Edwards, Cooper, and Chapman. The application for a new trial in the case of Joseph Moran, alias Reynolds, who was convicted at Napier on September 24 last of having stolen £9 18s. in moneys, and a pocket-book, the property of Patrick Henry' liickcy, from a room in the Napier Hotel, was considered. Mr. Lusk, of Napier, appeared in support v,. c tho motion, and Mr. Myers to oppose. CASE FOR THE CROWN. Tho evidence of the prosecutor was to the effect that on the night in question he went to stay at the Napier Hotel. He had had a few drinks during tho day, and in the evoning before he retired to his room ho had a couplo of drinks. In the middle of the night he-was awakened by a man sprawling on tho bed. He calls -dout: "Missus, Missus, there is a man in my room. Bring a candle." The intruder said: "Hush, don't make a noise." Subsequently he was again wakonod in the same manner, and in answer to his call, tile licensee brought a light into tho room. It was discovered that prisoner was tho intruder. Upon a search being made the money in question was found to be missing. In cross-examination, he admitted that he had told Inspector Macdonell that if it had not been for the cheek of tho accused ho would, not have charged him with tho theft. The licensee, in the courso of his evidence, stated that prosecutor told her that there was another man in tho room before prisoner.

Mr. Justice Chapman, in his statement of tho care, pointed out that in summing up ho reviewed the evidence in a way that was favourable to accused, who was defended by counsel, and elected not to give evidence on his own behalf. Prisoner's record probably accounted for the course taken by his counsel. Six convictions were recorded against him, including the following:—Theft at Wanganui in 1000, eighteen months; assault, causing bodily harm, at Wellington, eighteen months. "Without expressing an opinion as to tho propriety of the verdict he (his Honour) gave prisoner leave to apply for a new trial, for the reason on which he had acted iii other cases, viz., that there was at least a fairly arguable case. He did not, however, think it necessary to reserve the case for the .Court of Appeal or suspend judgment, but sentenced prisoner to two years' imprisonment with hard labour. He desired that in caso a new trial was granted the Court should consider the question of allowing bail or remitting tho question to tho magistrate at Napier.

ADDRESSES BY COUNSEL. Mr. Lusk said the caso against the prisoner consisted mainly of tho evidence of tho prosecutor. The jury were, he admitted, entitled to come to tho conclusion that on tho night in question prosecutor, although lie had had a number of drinks during the afternoon and evening, was not intoxicated. Two visits were paid to prosecutor's room, and ho submitted it was not the same man who intruded on both occasions. Prosecutor did not accuse prisoner of the theft until' next morning. It was clear that prisoner was not the person who went into the room on the first occasion. If prosecutor were robbed, tho theft took placo on tho occasion of tho first visit, and it was not likely that if prisoner were the thief he would return to tho room subsequently. Mr. Myers, in. reply, contended that prisoner committed tho theft 011 the occasion of the- second visit. Taking all the circumstances into consideration prisoner's'-guilt had, lie submitted, been shown, and tho verdict was a reasonable one. / JUDGMENT OF TIIE COURT. Tho Chief Justice said the principles of law which must guide the Court in dealing with an application for a new trial were quite clear. If.tho evidence were such that twelvo 111'en could not reasonably convict, then the Court should cither quash tho conviction or order a new trial. The real question was whether there was sufficient evidcnco to go to the jury. If tho evidence were such that twelve men could reasonably convict, then the verdict could not be disturbed. Ho could not say it was a caso in which tho presiding judge was bound to withdraw the case from the jury. Prisoner's record of previous convictions had been attached to the statement of the case. He thought tho Court ought to regard the matter as if'there were no convictions against prisoner; they not to be regarded to his 'disfavour. When prosecutor mentioned the theft prisoner had declined to give his name, and had made fajse statements. Tie had not legal right to be in prosecutor's room at all. Tho Court ought not to order a new trial..

Mr.' Justice Williams was of opinion that the case was not one, which could havo been withdrawn from tho jury. Ho was not, however, satisfied that that was the test, djd not follow because a contrary verdict might have been given that the verdict which was given was not one which' twelve reasonable men might have given. In his opinion prisoner was the man who entered prosecutor's room on both occasions, and lie had not satisfactorily explained his presenco there. The conviction ought to bo affirmed. Mr. Justice Denniston was of the same opinion. It was, he thought, simply a case of a dishonest man "shepherding" a drunken man. A judge had every right to attach a prisoner s record of convictions to his statement of a case if he thought it proper to do so. A\ bether the Court was called upon to consider that matter ho would not like to givo an expression of opinion off-hand. ' Mr. Justico Edwards said he could not agreo with the Chief Justice that there ought not to be a new trial unless tho case was one \vhich could have been withdrawn from the jury. The evidence in the present case was not, to his mind, altogether satisfactory. It was impossible to rely ou prosecutor's evidenco in detail. Apart from that evidence there was, however, a series of suspicious facts all tending to show prisoner's guilt. Prisoner had failed to give satisfactory explanations, and in the circumstances tho conviction must bo upheld. Air. Justice Cooper, who concurred, held that if a.case presented by the prosecution was unanswered by the defence,' and if upon that case there was evidence upon which a jury might properly convict, an application for a new trial ought not to be entertained With regard to the right of the Court to look at prisoner's record ho would reserve any expression of opinion. Mr. Justico Chapman said ho agreed with the judgments of.the other members of the Court. In opening the case, tho Crown Prosecutor had stated that the Crown had to rel.v on a slender collection of facts. He (his Honour) was satisfied that it was not a case ho could havo withdrawn from the jury. Tho Chief Justice added that lie did not intend to lay down any new . rule. Ho merely intended to say that in a case whoro evidence was a.ll tho one way, and there was no conflict of evidence, and the Court held that it was so unsatisfactory that no twelve reasonablo 'men could convict, then tho ease ought not to bo left to tho jury. In such a case tho proper thing to do was to quash the indictment. It would bo absurd—a farce—for a new trii\l to be granted. Thinga would never come to an end if a now trial were granted in such a case.

The convictiort was affirmed, and tlio ap. plication for a new trial dismissed,