SUPREME COURT.—Tuesday. CRIMINAL SITTINGS. [Before his Honor Mr. Justice J. S. Moore.]

Daily Southern Cross, Volume XXIV, Issue 3401, 10 June 1868, Page 4

SUPREME COURT.— Tuesday. CRIMINAL SITTINGS. [Before his Honor Mr. Justice J. S. Moore.]

The Uourt rat at ten o'clock. STJAXTNG FROM THB MSRSON. John Thomas Berry. 24, carpenter, vu charged with stealing at fchortland, from the person of William Carruthers, fourteen £1 bank notes. Mr. MacQormiok defended the prisoner. The prosecutor deposed : I am a miner residing at the Tbamon. On the 7'h May I saw the prisoner at the Northumberland Hotel between 12 add 2 o'clock in the da^-time. We had some drink together. I was j< acquainted With him, 1 having seen "him at a boarding-house in Shortland, ' I wSnfc'to bed at the '" Northumberland, the prisoner being in the same room* ' I was asleep about a oonple of hours. I was not undressed. When I went to sleep I had £14 upon me in £1 notes. When I woke up my money wai gone,' and the prisoner had 'disappeared. I conld recognise one of those £1 notes by a piece torn off one of the corners. The note produced is one' of those which I lost. &»' •nawer to Mr. MacCormick, witness said he lived at Tapu Creek, but Vent up to Shortland on business.' The day before losing this money he bad drawn £50 from the Bank— all in £1 notes. Might have paid visits to other hotf Is. Dare&ay he went in several for a glais of ale. Was not spending his money very freely in drink— mififht have spent a pound or two that \tay. Had been drinking on the Thursday—the day he lost the money. Was the Wone for drink when he went to lie down at the Northumberland. Was in the company of a woman before he went to the Northumberland, and he might have had some drink with her. Did not look the door of the room when he went to lie down. The prisoner might hare come back to the NorthumberlM£ HoteF » but witness 1 did not remember. He only recollected seeing him at the station-house the same evening. It was prisoner got him (prosecutor) to go upstairs to bed. „. f 1 / im 1 s I|O PS de P° a e^ :I*m * miner, residing at lapu Creole. ' I reoolleot seeing the prisoner and the prosecutor together on May T. From what we heard in the'aftemoon, I and one of my mates went over to the publio-house;to see him, as we knew' he bad got a sum of money about him. We found 1 prosecu- ' tor in the bedroom lying asleep on the bed. ' 1 searched' him ta'see'if he bad got any money on him, aad found a few shillings in his picket. I then went and looked for the prisoner and found him in Boulter's Hotel, close byl He a«ked me if I would have a drink. I said if he came into the back room I would. I then asked him if he had the money which Carmthen bad^given liim to keep. He replied that he had no money, I tried to persuade him to giye it up, and I wouldn't say anything about it. He swore a good many oaths that he tad not got it, and I then gent for Sergeant Lipsey, who searched him but only'found a few shillings on him. I drew the money— £so— but of the Bank ht the prosecutor; I think it Was the day before. The note produced is one of those Which I drew from the Bank. Cross examined : Carruthers was on the spree on the day in question, and seemed pretty drunk when he was put to bed. ' I can sw'eaVto the note from the piece being ,torn off, and also from a peculiarity in one of theiigures whioh I had previously remarked. 'James Carey gave oorroborative*evidence witK regard to searching the prisoner at tb'e hotel. Witness gaye 1 the following additional evidence : We topk the prisoner to the station, and he was again searched by Serjeant Lipsey. While ( the oonstable was examining his trousers I saw something in the prisoner's hand and told the sergeant^ who immediately caught him by the wrist. Prisoner struggled very much— he first tried to tear the notes and then to' get theih to His moutb, but we got them from his hand. There were eight £1 notes. Francis Lipsey, sergeant of police, gave evidence beating out the atatemerit of the last witness. 1 Thia was the case for the. prosecution. Mr/MaoCormick addressed the jury on behalf of the prieoner, and the Judge summed up. The jury found him guilty. Prisoner, was then charged on an indictment with having been previously convicted, to which he Pleaded guilty. ' Prisoner was sentenced to be kept in prison for a ■pace of two years, with hard labour," FORGJNG ASD UTTIKING. Wittiart} Sealdvr&* charged on an indictment with forging a' certain authority for the payment of mppey., _ There was, also a second indiotment of a •imilar kind, charging him with forging and uttering an authority fpr^pttyment of money, well knowing the same to be forged.. Mr.^Wynn appeared on behalf of the" prisoner. After, stating,, the facts of t,he case Mr. Brookfield proceeded to oajl the following witnesses : Joseph Coo'm^e, deposed : I have been accountant te , Auckland" Savings Bank for the last seven years. In 1864 there was an account opened with the bank by a man named James Brien, a private in tjhe2nd}Bbh, , When the account was opened we required, the "depositor's signature. We received a signature purporting to be that of James Brien. It is the t one produced in Court. I myself cannot say in whose handwriting that document is. (The authority was read bjr the .clerk, authorising the prisoner to pay in a sumof £14 to the Savings Bank on behalf of James Brien,) Three months afterwards £4 of it was drawn out. The document produced it the one upon. which it was withdrawn. 1 paid the money to the person who endorsed the paper. I believe it was the prisoner. The order ran: — "February 5, 1864. — I hereby au horise and appoint ColourSergeant Beajd to withdraw from the jbalance of my account the sum of>£l4, in" compliance with the form pf rules and regulation*. — (Signed) Jambs Brisk;" and endorsed : '% Hbjllix" On the 19th July, 1866, , the balance. of the account waa drawn out— £1,0, 18s. Id. I made that payment upon an order which was presented. The. money was , paid to Sergeant Molloy. The orde> ran as follows:— "I hereby [authorise and apppint Sergeant Molloy to dram from tb,e.b»nk £10, with the interest, accruing sinoe 3 the JdepQßit."Jt J depQBit."Jt was signed by " the mark" of J. Brien,, witnessed ,by W. Heald, andjendorsed by Sergeant Molloy.'! Upon that document I paid out theibalanoe and interest, Sergeant Molloy, off the , 2-18bh Royal Irish, deposed, ., Heald ia colpur-aergeant in pur battalion. The deposit note produced is in the prisoner's handwriting. This oe,3er to withdraw £4: is, endorsed by Colour-Sergeant Heald. -The order to withdraw the £10 is partly" in' prisoners handwriting. The endorsement on the... backbit, mine. .. I drew out the money. The order was sent to me from Patea, where the prisoner was-stationed, and I took it to the bank and received the money, and forwarded to Sergeant Heald. He acknowledged the receipt of the/post-office orders by letter. I produce the letter, - < ■i Mr.,[ Wynn objected to the letter, being put in evidence* unless the prosecution laid a certain foundation on the evidence for it to rest upon, .Mr. Brqokfield, might: as well read a report of the proceedings ia the Daily Southern" Cross, taken in the Kesident Magistrate's Court. His Honor ruled that, ,the, letter could be put in evidence. Mr. Wynnafguett 'lftat' there wai'xlo proof of its beitfu 'a' letted at all. -There' was not even an envelope produced. - ? A .-n . Mr. Brookfield asked witness what the post-office ordesr represented. "■ ' Mr.^iWynn> objected to the question. The postoffice orders must be produced in Court, if they were tO'be taken inevidence; ■ Witness oontinned ; On getting. the £10 18s. Id. ' from the' Savings Bank, I got two post-office orders, put them in an envelope which I registered, and left them *t the post-office 'with the olerk,' to be forwarded onto the prisoner at Whanganui. In reply to this letter of mine, I> received the answer already started. I knew that James Brien was in Whanganui at this time, but I~did not know in what part. : Gross-examined t- I have, been in. the 18th Begiment for nine yean. I could not swear that there is not canother. James Brien in the regiment. There is a Cornelius Brien. ' , James Alexander; r Jackson deposed :. I am, lieutenant in the detachment of the 218 th stationed at Auckland. On the 26th January I was at Whanganui. I knew a private of- the toame of James Brien. Be f -was ' wouAded ■on the 26th of January, and afttrwards diedif -_I saw" him buried. Sergeant Heald' was in camp %t that'timei I nave this year rieeiv«d^ a "letter ' from- the' officer -commanding: at NapierMi^the priMotysi?* hand writings « ( Letter put in and.reaai t lt)^#sMfldated.' 17th AprU, 1868, and wasto- the 'foilowiiig effect:— That having been informed by the eomma t ndin# officer Tthat a' sum : of money had been taken out of the bank in Auckland by Heald, in the napneijof f the 1 , dead man, James Brienf,he^hough^, U< proper to write ; and, (j|ear, up tbjynaifcer., geVre^lfefrted yeryyea^th^t, f^bout thrje years ago,,Bri«m ,h%A, instructed^ him tpVput a ram of £14 ip,the Auckland Savings; Bank for him. He.did,sp,,and l a6ted ; for liim in various money mattm fromjkime to time. After the death of Brien, at Wbanganui, he wrote to Molloy requesting him to draw out the money from the bank, and forward friends of the deoeased. ,At the closVof the letter prisoner stated tb*t ty h»d now beeu' in the army

for netrly twenty years a <i wore a medal for general good conduct throughout that period. Witness continued :) That letter U ia prisoner's handwriting. I believe there was another Janjes Brien in the 2nd battalien 18th Regiment. He was in the H company, which remained behind at Alexandra. Cross-examined : I would not swear that there was another James Brien in the 2nd battalion 18lh Regiment stationed at Patea. I have known the prisoner for eight yeirs. Mr. Brookfield objecte l to evidence of character being given at this bta^e of the proceedings. His Honor concurred in Mr. Brookfields view. Mr. Wy»n argued that he had a peifect right to ask questions as to the prisoner's character, and laid a case in point before the Court. ! The question si were allowed, 1 Witness continued • His conduct must have been Remarkably good, or he would never have been a colour-sergeant. He wears a good-conduct medal. Mr. Wynn thought it was' unnecessary to trouble the jury by addressing them on the case. On a point of law there wwars r nothing to identify James Brien here with the James Brien mentioned in the evidence. He would ask his Honor whether there was any case to go to the jury. His Honor did not think there was a case in which the jury could convict. Mr. Brookfield oontended that the evidenoe was quite sufficient at least to go to the jury, and he would contend that it ought to. Mr. Wynn said that Mir. Brookfield had oo right to press the oase to the jury after his Honor's ruling. His Houor said there was so much doubt in the matter that he should direct the jury that there was not sufficient evidence to find the prisoner guilty. 1 Of course the case was in their hands, but 1 he (the learnrd Judge) should certainly say the evidence was not sufficient to convict. The jury immediately returned a verdict of not guilty. There were loud manifestations of applause in the body of the Court when the jury delivered their verdict, but they were immediately suppressed. This being the last criminal case, the jurymen in attendance were discharged, and- the Court was formally adjourned. i The oivil business will commenoe on Monday next. ; Before the adjournment of the Court, Mr. Brook- ; field asked his Konor to allow costs in the case of I the Queen !'v.' Cobb, to'the different witnesses. He | thought it was a very proper case for expenses. \ Application granted.