SUPREME COURT, HOKITIKA,

Grey River Argus, Volume XIV, Issue 1759, 25 March 1874, Page 2

SUPREME COURT, HOKITIKA,

Monday, March 23. (Before his Honur Mr Justice Richmond.) [from our special reporter. J CONSPIRACY. The trial of James and John Hayes, charged with conspiracy to defraud, was continued this morning. The jury having been called over, The Judge said that complaints had been made to him as to the jurors' seats. He thought that comfortable seats should be provided for them, not such as to invite repose, but they should have an opportunity of taking notes. As to the idea that a verdict should be got out of a juror by what was called duresse, this still existed in our lav/, but the practice wa3 quite obsolete. The sheriff would make such provision for them as the mear>3 at his disposal admitted of. Mr Button, before proceeding with the case, wished to call some preliminary evidence as to a certain letter from James Hayes to Patrick Ryan, which Ryan had aworn in the lower Court that John Hayes had obtained from him and destroyed. He quoted authorities to show that such secondary evidence was admissible in certain cases. Three witnesses had enquired of Ryan for the letter, namely, Messrs .Kenrick, Thompson, and Perkins, and he had made the same answer to all, namely, that John Hayes had destroyed it. Mr Guinness contended that before evidence as to the contents of any letter could be admitted it must be proved to have been a genuine document. His Honor having explained the object of this evidence to the jury, the following witness was called : — R. H. Russell : lam an hotelkeeper at Greymonth, and formerly kept the Post Office at Half-Ounce. I have seen James .Hayes's handwriting. I have no recollection of receiving letters for or from him. I do not think I could recognise M 3 handwriting. I know a man named Patrick Ryan, I remember being shown a letter by him in Greymouth. John Hayes called at my house and saw Ryan. This was about ten or twelve da3 7 s before James Hayes was brought back from Victoria. I saw the letter and read it. I could not possibly say whose writing it was, unless I accept the signature as that of the person who wrote it. I could not recognise the signature. I have seen Jas. Hayes's signature once or twice, a long time a^o. I have no doubt that the signature I saw to this letter was similar to a signature I had seen before of the same party. I did not entertain any doubt that it was the signature of James Hayes. I had no reason for entertaining any doubt, so I took it for granted. Ido not know where Mr Ryan now is, or any thing about him. The signature shown me reads "James Hayes." It appears to me much better written than signatures of his I have seen. I should fancy the person who wrote that could write a better hand than Hayes. There is a similarity ; the "H" is the same kind, but the 'J ' is very different. By the Judge : I was at the Half-Ounce about twelve months. [The signature to the deed of assignment was then shown to the witness. This he said was more like the signature he saw to the letter than ihat which was first shown him.] The Judge held that sufficient had not been shown to let in the letter, or bring evidence as to it 3 contents. Fred.. Wilckens : I reside at Half-Ounce. I know the prisoners, and the store which John Hayes opened at Half-Ounce, formerly belonging to his brother. He opened it some time in May, 1873. I had some conversation with him about his goods a month or so after he opened. He said I should find a difficulty when my bills be : came due, but that he had not paid for his goods, and did not intend to. I bought the store from the trustees, and he summoned me to give it up, as he said it was his property. He produced a sale-note that he had bought it from his brother for L 25. I bought it for L3O. This was in the Warden's Court. John's purchase must have been shortly after his return from Melbourne. He swore he paid in bank-notes. By Mr Staite : I am a draper. I opened at Half-Ounce before John Hayes, after James Hayes closed his shop. lam in business there now. James offered tnt his store before I started about a month. They are both in the store there selling goods now. James Hayes was not there when John started. His brother has been in the store for the last two months. I first gave evidence in the Magistrate's Court, Cobden, in the trial of James Hayes. I was not summoned to giv* evidence against John Hayes when he was examined. At the time of Jas. Hayes's examination, John Hayes bad re-opened the store. I told Mr Guinness and Mr Thompson of what evidence I could give. I dealt in a small way with Thompson. I am quite sure ho told me he did not intend to pay for his.goods. 1 said nothing to John Devery about the difficulty I had in carrying on business in opposition to Hayes. The only law-suit I had with him was about the giving up the store which was given to him by the Warden aud Judge in the District Court. It was after this I gave evidence against the prisoner, concerning the conversation as to his goods. I might have given evidence in the Magistrate's Court as to a conversation I had with Devery about the difficulty of keeping up with John Hayes, because he did not pay for his goods. I might have said, "It would be all right if John had kept away till after Christmas," but I am not sure. By the Court : I was in the habit of seeing Devery six or seven times a week. John's goods were taken asvay by Thompson, Smith, and Barkley, under his bankruptcy. He was committed in September, and re-opened shortly afterwards with a new stock. Harry Kenrick : I am clerk to the District Court at Greymouth. I produce deed of assignment from James Hayes. The signature to the list 1 cannot swear to, as I did not see Hayes sign it. It was filed with me. I heard James Hayes make a statement in the District Court as to his going away. That was in September, after he was brought back from Melbourne. He said he went by the Aborigine, under the name of James Grady. He said he had paid the usual fare and gave the captain L 5 in addition, as he did not wish his friends to know that he was leaving in another name. By Mr Guinness : I am trustee of Hayes's bankrupt estate. Mr Thompson acted as my agent on taking possession 0. | the storo at Half-ounce, under an orde ' of the Court. No notice was given t

James Hayes, as he had left the country. I am not certain whether or not notice wa3 given to John Hayes. That order was obtained on Mr Thompson's evidence alone. I had previously laid informations against James Hayes for misdemeanour in bankruptcy. He was acquitted on one, and the others were withdrawn. I know a witness named Ryan. He sent in a claim to mo fur wages. He gave Messrs Thompson, Smith and Barkley an order for Ll2 on tne which I paid. I disallowed some part of his claim. A silver watch, and, d think, L 7 were found on James Hayes when he was brought back. : Jamea Dorris : I am senior constable at Half -ounce. The store now occupied by John Hayes is in that township. I know ihe prisoners. I dealt at the store at Half-ounce. It was closed in February and opened in the beginning of June, 1873. John Hayes loft A haura on March 15, 1873, for Melbourne. Aboutthebeginningof J unb he applied for a new business license in his own name, and opened the store. I bought goods there afterwards. Of the goods named in the bill produced I purchased part at James Hayes's store, Ahanra, and part at John Hayes's store, Half-Ounce. I asked John Hayes for the bill at the Half-Ounce store. James Hayes's business license expired on April 11. I saw no transfer or assignment from one brother to the other. I remember finding a case of goods for John Hayes's store on 18th July. I had instructions, and found it at Marshall's store, on Totara Flat. It was marked "J. Hayes." There was no other address. On the 19th I went to Marshall's again, and found a roll of calico lying on the seat outside the door, directed to be left there for John Hayes, at HaK-Ounce. This U at the junction of the Half-Oance road with the main road to Reefton. Some time afterwards Marshall put the case and the roll of calico on a dray, and sent them to Half-Ounce. I assisted to put the box on. It was a very large case. The direction on the calico was torn off at Half-Ounce. This was left at Marshall's store, at HalfOunce, but the case was taken to John's store. I saw John Hayes shortly afterwards. He asked me what I was looking after his goods at Totara Flat for. I denied looking after them, and lie told me that if he caught me he would kick tne, using an obscene expression. By Mr Pitt : There was no concealment about the transmission of this case, and nothing unusual. I saw the label on after the goods were on the dray. The receipt I havo put in is dated June 17. It was publicly announced that John Hayes wa3 going to open the business. I asked him for the amount of his business license more than once. I told him to put it in my bill, and I would settle it in that way. There were only three items of goods included in my bill, which I purchased after John Hayes had started on his own account. I thought it strange that the account with the two brothers should be put in the same bill. When 1 asked for the account it was made out there, and then. I received instructions to look after this case of goods from my superior officer. Jamea Hayes's affairs were a good deal talked of at the time. I am not aware that John was collecting for James. I did not see this case of goods opened, but I did see a smaller one. I summoned John Hayes for indecent and obscene language. . I had made private inquiries about his affairs. The information I laid against him was dismissed. Cross-examined by Mr Button : I simply asked John for the amount of my bill, and the amounts contracted in the different stores were all mixed up in one bill. By a Juror : I saw no printed billheads in John's name. By the Court : The business license is L 3. It was squared by my receiving 183 and a receipt for my account, which was; L 2 2s. The Court recommended Constable '\ Dorris to be extremely particular about I keeping public money altogether separate from his private affairs. John Mitchell : I am a carrier between ; Reefton and Greymouth. I carried! goods between Reefton and Totara in July or August, and one Sunday from James Hayes to John Hayes. They were ' to go to Marshall's, at Totara Flat. The case was put on by James Main, the storeman, and two or three others. It was a large drapery case, about 4ft by 3ft' by 4ft.. It weighed between 3c\vt. and; 4cwt.- I got LI for taking it. It was not* very well fastened, but I did not notice it; particularly. I left it at Marshall's. By Mr Staite : 1 took it about 24 miles. The price was not unreasonable. I have never taken goods for Hayes this way be-! fore. I left in the middle of the day, taking the case from Hayes store. I had; no special instructions with regard to it. \ By a Juror : There was no roll of calico ; with the case. Samuel Goodail : I am a Sub-Inspector of Police for the Grey District and know the prisoners. On December 31, 1872, James Hayes asserted that he wa3 robbed of 3750z. gold dust, L 55 bank-notes, and six cheques for various amounts. He said it was near the bridge, as he was coming from Half-Ounce. That there were three men, and a tall one presented a gun at him. A shorter man took the 1 valise which he (Hayes) was carrying. . Mr Pitt thought that this evidence coukl not be relevant to the present case, and this was not one of the overt acts alleged in the indictment in support of the charge of conspiracy. Examination continued : In January or February, 1873, I had a conversation with' James Hayes. He said Thompson was pressing him, and that if he pressed him he should go insolvent, and would pay Jack, his brother, to whom he said that he owed L3OO, first. About the end of March we were speaking about John having gone away, and some money which wis found on him when he went. He said that was the LIOO which he ; .had paid him. I understood that was a part of the L3OO. I remember a conversation between Thompson and John Hayes in August. Thompson asked him if he had any goods in the store besides what he had from James. John replied that he had not. By Mr Staite : I was first examined in tho matter of James Haye3, not against John Hayes, whom I arrested. I did not assist in preparing the case against him. I did not conceal these facts. I considered what 1 knew was against James, not John. Ido not recollect when I spoke of them first. I was not asked in the Magistrate's Court as to the first conversation with James about paying Jack, I and dicLiiot give it. I have not been engaged in getting up these cases. 1 have not had a particular quarrel with James.

We have had a slight disagreement. We used to be on good terms, but were not very intimate. The key of Hayes's premises was sometimes kept in my house. I made use of it once, perhaps twice, to inspect his premises. I remember doing so once. I went to find out something. I have been under their house. I deny being a friend of theirs. I went under their house because I did not believe Hayes's statement about the robbery, and wished to find out evidence against him, as I did not believe him an honest man. It was generally after dark when I went under the house. It was in connection with tho gold robbery. There was a reward for the apprehension of the offender, of which I should have expected part if I had discovered it. There were men suspected of the robbery in consequence of what Hayes said, for a very few hours. I did not hear Detective Browne's evidence. I am certain James said he owed his brother L3OO, but did nat say what it was for. Ido not remember the. exact date of the conversation. I made no ; special remark in reply. I was present to prevent a breach of the peace at Thompson's request, when he took possessibn'of the stock at Haif-Ounce. Constable Dorissandthe bailiff were with us. On a second occasion I went,up with Thompson, when I arrested John Hayes on a warrant. I went into the house. My reason for going there was to look for James Hayes. I took Constables Meredith and Davis on this occasion. Alfred Browne : I am a storekeeper at Greymouth. I remember coming from Reefton in a waggon in June last. There was a large bale and a package or two in the waggon. They came trom Hayes's store at Reefton. I cannot say to whom they were directed. One package was left at Devery's receiving store at the junction of the Half-Ounce road. ' I helped to take the things out of the waggon. I remember there was & piece of carpet loose amongst the things. To the best of my recollection the bale was addressed to John Hayes, Half-Ounce. Some of the packageslwent to the Ahaura. I think tha carpet was left at the storesthere. Patrick Ryan received delivery at^ the Ahaura. I think the goods we left at the Junction were directed to John Hayes. . '. By Mr Staite : There was more than one bale left at the junction. Mr Pitt applied for a quarter of an hour's adjournment to go through. the evidence and confer with Mr Gumnes3. The adjournment was granted. "''' This closed the case for the prosecution, . , After a short adjournment, Mr Pitt asked that certain witnesses named on the back of the indictment, but who had not been called by the Crown should be placed in the box for cross-examination by the counsel for the defence. James Marshall, examined by Mr Staite : I am a storekeeper at Totara Flat. I remember stating that I had received a case of goods on one occasion for John Hayes, which I forwarded to him after about a week. I had instructions to keep it as long as possible, but not to conceal it. Constable Dorris came and saw it. I know John Hayes. He is in business now. I have known him about four years. He has been at Half-Ouuce during that time. He bears a very good character. By Mr Button : This case came to me about 22nd July, 1873. Mr Pitt wished to have the ruling of the Court as to the right of reply. . He would not require to call witnesses on behalf of his client James Hayes, but. his friends Messrs Guinness and Staite wished to call evidence for John Hayes. The Judge said that the essence of a charge of conspiracy was that both prisoners must be innoceut.or guilty, and the Crown could not possibly reply on the case of one prisoner only. It was a case of the Siamese twins as it were. If the Crown would waive its right to sum up until the conclusion of the case for John Hayes the difficulty would be met. . Mr Guinness then opened the case for the defence in the case of John Hayes, stating that the evidence would be principally directed to the point of character, and to prove that he was actually in a position to lend his brother money as asserted. : John Devery : I am a drayman at . Totara Flat. I have conversed wittr~S .Wilckens about Hayes. He said he could not carry on business with Hayes there} but would do well enough if hd was not thei'e. This was shortly before Christmas. ... By the- Crown Prosecutor : I asked Wilckens when he would have some more stuff up, and he said he would not have any more up, as he could do nothing now Haye3 had started. This is as nearly as I can recollect what he said. Alexander Fbldi : I am a storekeeper, and was formerly in a store at Napolcson'a. I knew John Hayes then. He was digging. He went into his brother's employ in October, 1870. I was present at the sale of his mining share, which he sold for LBO, L4O cash, and the balance to be paid out of the gold. I never knew him anything but straightforward and honest. I believt he is well liked by everybody. I knownothing about a defence fund being got up at Half-Ounce. I know that he has started in business, but do not know how he got the start. " : : James M'Laughlin : I am a storekeeper at Ahanra and Napoleon Hill. I know the Bayes brothers, and never knew anything wrong of them. I recollect January of last year, when business was very dull at the Ahaura. I fancy James Hayes had left Half-Ounce then. I have had conversations with the brothers in reference to business. I recollect them starting in business. I gave John Hayes some advice when he came back from Melbourne and started business for himself at HalfOunce. They told me there was a debt existing between them. John Hayes was storeman for his brother for two or three yeirs. The usual pay for a manager is L 4 and L 5 and L 3. : ■"•:.' By Mr Button : I know John got some of the goods to start from his brother. I did rot know.Jameß was unable to pay his debts at the time. I have bought stores from him to pay a debt owing to me. Ido not know whether these goods 1 were entered in James Hayes's books. It was about L3O worth in July. I got them from the storeman. I have been subpoened in this case. T have backed Jolni Hayes's bills since he started in business. By Mr Guinuess : I do not know who else John Hayes got goods, from. I have' helped him to start again lately, I got the goods from Thomas and M'Beath. James Mulligan : lam a draper in Hokitika, and was in business at AddU

son's Flat in 1868. I have known prisoners for some years. James Hayes first came here with a small stock. He was employed by me at Addison's. He. had no rrieans then. This was in 3867. He was managing for me there. He left me •when I closed up the house. He drew then LB7 10s. He went up the Grey river and started in business. He asked me to supply him with goods. I said I would supply him. John Hayes was then doing a fair business in a public-house of his own at Addison's Flat. By Mr Button : I believe James Hayes went insolvent at Addison's Flat before he came to me. The house that John was in was bought after the insolvency. He went insolvent owing to the bad state of the diggings. lam not aware that he was insolvent after that house was built. John Hamilton : I am one of the firm of Gilmer Brothers. Have known John Hayes for five years, and never doubted his honesty. I have had various transactions with him. I never heard any ore speak badly of him. By Mr Button : My transactions were with him more in the hotel and horse line. J. S. M. Thompson : I went to take possession as provisional trustee at HalfOunce. I have never been served with nptice of action for LISOO by John Hayes in consequence. By Mr Button : The books 1 have produced have not been altered since I received them, beyond being posted up from the day book. There is no account entered to M'Laughlin in the Ahaura books. As to the settlement between the brothers, 1 see the entry as to the good 3, and I see that some were charged at Eeefton and some at Ahaura. By Mr Guinness : Ido not recollect finding any books at all in the store at Half-Ounce. James Hayes told me in July he started his brother in business at Half-Ounce. This concluded the evidence for tho defence. Mr Staite addressed the jury for the prisoner John Hayes, and was followed by Mr Pitt for James Hayes. Mr South replied for the prosecution. His Honor, then proceeded to sum up the case to tho jury. He said that he would endeavor to make hi 3 part of the business as short as possible, making no Bort of comment on the very copious comment which had been made by the counsel for both sides on the conduct of the case. The main question for them to consider was "Was the debt credited to John Hayes a bonafide debt from his brother ?" If it was, then the transaction between the two brothers would amount to a preference of one creditor ; but in that case the charge of conspiracy must fail, and they ought not to convict the prisoners. As had been noted, there were no particulars of the account between the brothers in the day-book or ledger. It was, however, in evidence, and had not been contradicted, that for two or three years John Hayes had acted as his brother's storeman, and that wages up to L 5 per week were proper wages for this. The settlement might be made up as follows : 26 weeks at L 3, and 104 weeks at L 4 10s, for wages ; together with L2OO for money lent. From which has to be deducted the sum of LIOO lent to John when going to Melbourne. While John was away in Melbourne the store at Half-Ounce was closed, but was re-opened by John on his return with goods supplied by James. If these goods were conveyed there without any consideration there would be ground for a conviction, but, on the other hand, if there was reason to suppose that James was really his brother's debtor in the amount stated, then they would acquit. But if again they were of opinion that goods in excess of the amount of the debt were handed over by the one brother to the other, then there would be grounds for conviction. An important point in the evidence was the removal of a large case down the river instead of up in the usual manner, which was seen by Davis on July 18, at Totara Flat. As to the value of goods in this case, it was quite evident the witness Hislop tried to extenuate his former evidence. Whether he was frightened or not, his Honor could not say, but he did not think that Hi3lop's account of its value could be very reliable. Considerable value of soft goods could, however, be put into a case measuring 48ft. On this point Mr Button had principally relied, so that perhaps the Crown was entitled that a larger amount than the debt was paid, even if that debt was a bonafide one. This was a very different matter from a fraudulent preference under the Bankruptcy Acts, and would be sufficient ground for a conviction. The accounts were unsatisfactory ; . but the statement of James must not be taken as against John. It appeared that the former told Thompson in January that he did not owe John anything, but subsequently he tells Goodall that he owes John L3OO, and means to give him a preference. As to the state of accounts' between them, it would be damnatory if the parties were strangers, but in the present case was perhaps not unnatural, and still there might be a real debt. [Mr Button heie called the Judge's attention to the fact that tbs settlement between the brothers took place on the 3rd July, but the big c; se was not transmitted until the 18th, when it was seen at Totara Flat, where it had then been some days. The witness Marshall was then recalled, who said he might have had the case in his charge for five or six days.] His Honor continued going through the evidence of all the witnesses, and commenting thereun at considerable length. In conclusion, he said — " If you come to the conclusion that goods beyond the amount of the settlement were supplied to the Half-Ounce store you will find the prisoners guilty." The Jury then retired to consider their verdict (at 7.15 p.m.) At nine o'clock the jury returned into Court, when the foreman stated that they were eleven "for" and one "against" but that all their argument failed to convince that one. His Honor said that the foreman should not have stated their numbers. He was very sorry but under the new law he could not discbarge them until after twelvf hours' deliberation. In civil cases a fivegixth majority was taken, after Bix hours deliberation. There was nothing tor ii but that they should go back to theii room. He would be ready to take theii verdicc at any time up to midnight, as hi did not want to lock them up all night. At twelve o'clock his Honor again Ben for the foreman, who said there was n< chsnee of agreeing. The Judjre said the law required him t< detain them, as no second trial couli take place otherwise. They must wai

till breakfast time for refreshment, as he could not order them anything. Would adjourn until an early hour (8 o'clock), in order to save tho jurors further detention. In reference to bail, his Honor did not think he shonld be right in admitting the prisoners to bail at that stage of the proceedings.