SUPREME COURT

Grey River Argus, 9 June 1933, Page 6

SUPREME COURT

I CAPLESTON EXPLOSION Wright Found Guilty ON THIRD COUNT. Tim healing of the charges against .lame Me l.ny Wright and Arthur Lewis Schroder, of damaging the dwelling house of Joseph Nohra at Capleston on May 21, were continued at i lie Supreme Court at Greymoutli yesterday. Mr T. F. Brosnan appeared for the accused, and Mr F. A. Kitchinghani conducted the Crown case. The evidence of Constable O’Brien concluded the (Town case. Wright and Schroder were charged (1) that, al Capleston, on May 21, by night they did wilfully damage the dwelling house of Joseph Nohra, by an explosion, Nohra and three other persons being in the house at the time; (2) that, with intent to intimidate or annoy Nohra, they damaged his dwelling house by an explosion; (3) that, with intent to intimidate or annoy Nohra they attempted to alarm him, liv the discharge of explosives adjacent to his dwelling house. Mr Brosnan submitted that there was no case against Schroder to go !•’ the jury. He quoted the case ol H.Mthe King v. Tarrant, and the remarks of Mr Justice Ostler. His Honor said the Crown had proved a perfect alibi so far as Schroder was concerned, but it did not seem to him that he could direct the jury <o far as Schroder was concerned. Tim Crown accused Schroder of being an accessory to the fact, not so much before the explosion as after. THE DEFENCE. Mr Brosnan said the 'defence would roioi -i of simple and straightforward evidence, and they had given an aeuni of their movements to the police. The;, were in Reefton on the Saturday night and came home in separate cars. They went to the tent and Wright produced whisky and Gerrish got so drunk that Schroder had to assist him Evidence was then called for the defence, and it was a complete denial of the allegations. The accused, Wright, in evidence, aid that from January he had had his meals al Gerrish’s. He just left Nohra's and denied that Nohra stopped him from going back. He never made any threats to Nohra. His Honor at this stage disallowed Mr Brosnan’s questioning regarding the suggestion that witness was “Percy Bell.” Mr Brosnan said this had been asked of witness by Nohra and he anted to show that Nohra was bitter to the accused. He suggested to His Honor that it could have been a frame-up and that Nohra placed the gelignite in a nice position and blew his own house up. Witness, continuing, said there was no fuse above his hod on the Saturday. He took it on to the job the previous Monday or Tuesday. He denied the allegations of Nohia and Gerrish. He could not lure had gelignite in his hand as stated by Gerrish, as he had none in camp. Gerrish was drunk and had to be assisted home by Schroder, after which wit-

111ess went to bed. Tie heard the explosion. Schroder was not in the tent then, but came in shortly afterwards. [Witness had an idea where the ex.plosion was, by the sound. Witness went to Gerrish’s next morning for I breakfast. There was just a general conversation about the explosion. He «lid not hear Schroder say to Gerrish: I “If the police make enquiries, say we were having supper.’’ Witness first knew the police were coming out | when they were at the, Cronadun | Hotel. Witness then went to Reefton. |he sitting in the front seat of o’MalI ley’s car, with Adams and Schroder iin the back. Witness did not say durling the drive that he had told Nohra to get out or he would blow him out. I He did not hear the words used either, iWitness had had experience with explosives since 1920. It would he dangerous placing half a packet (25 [plugs) of gelignite on top of the [ground and exploding them. He would i not explode them that way. He was i! not bitter in any way towards Nohra. I; He might have called Nohra a black I . If gelignite became frozen there ' was a danger in holding it. There was ino difficulty at all in getting gelignite. To His Honor; The fight with Nohra had nothing to do with the money he owed Nohra. It was over Nohra not • paying the Is in the £ tax and Nohra had accused witness of informing upon him. The accused Schroder gave corroborative evidence. Witness did not coo-ee after the explosion, which he . heard at Gerrish’s house. No reference was made to the police that night. Witness did not tell Miss Blair and Gerrish to say that Wright was also having supper with them. When witness returned to the tent, Wright was in bed. Nothing was said in the <-ar going into Reefton the next morning about blowing Nohra up. He had not heard Wright make any threats against Nohra. Witness had no illfeelings against Nohra. Witness had told Constable O’Brien they had a bottle of beer in Wright’s tent, which was incorrect. They had a bottle of whisky.

To Mr Kitchingham; Witness did not laugh when the explosion occurred. Ho went to Gerrish’s door to see if his tent was still in the same position. He could not say if he said: “If the police make any enquiries wc were all having supper.’’ He denied that he suggested to those present at |Gerrish’s that they should include Wright as being at supper if any enquiries were made.

Mr Brosnan, in the course of his address to the jury, said the evidence was mere suspicion and uncorroborat-

led. Il had to be pj-ovml beyond all [ reasonable doubt that one, or both, aceused were guilty of oue of the gravest offences on the calendar. The, evi [deuce of the witness O'Malley was i not correct as it was clear Wright was sitting in the front seat of the ear with O’Malley, and O 'Alafjley had said i that the remark “We told the nigger [to get out or we would blow him out” <anie from the back seat, and from j either one of the accused, probably I Wright. How could it have possibly come from Wright in tin l back seal, when he sat alongside O’Malley. He suggested that instead of Wright hav- [ ing a feeling against Nohra, somebody had a feeling against Wright. It could have been Nohra, Clark, or Adams, although he would not suggest it was any of these. His Honor: You should have questioned Nohra on that when he was giving evidence. It is. however, a farfetched story, and I will have something- to say to the jury on it. You had not the courage to ask Nohra. but I instead now bring forth this far--1 fetched story. ■ Continuing. Mr Brosnan said that Wright's evidence had been straightforward. He asked if Wright appeared t<> be a man who would harbour t grievance? He had fought Nohra and was a man (vho would tight it out. There was no evidence against Schroder. except a suggestion that he coo ed, and if he did, what did that, matter? The evidence had to be strong and proved beyond all reasonable doubt that these mon were guilty. The Crown prosecutor said it was admitted by the Crown that Schroder did not light the fuse, but instead of charging him with aiding and abetting Wright, it was simple to charge him with the offence straight-out. It was suggested that Schroder knew what was going to happen and he shepherded Gerrish in order to get him out of the way. In support of this there, were various statements and actions by Schroder Io suggest an alibi for Wright such as that they were all having supper together. There was ample motive for the commission of the off mice by Wright, as ho had refused to shako hands and had gone to Nohra’s place to tight him. The question was boiled down to the credibility of two sets of witnesses. Material evidence was given mainly by friends of the accused. His Honor, summing up. first dealt with points of law governing criminal .cases. Unless the jury found that ' Schroder purposely took Gerrish away to allow Wright to carry out the crime he could not be held as an accessory (o the crime. If on Hie morning after asked Miss Blair Io in'dude Wright as being present for supper during the explosion. Schroder was an accessory after the fact, and therefore could not be held to bo guilty of any offence. The case against Schroder was not so strong as that against Wright. The jury retired at J.lO p.m., and at the adjournment for dinner at 6 p.m. had not agreed. The jury again retired at 7.30 p.m. and returned at 8.40 p.m. to announce their verdict. The Foreman announced that they had found Schroder not guilty on all counts, and Wright guilty on the third charge of attempting to alarm Nohra. His Honor said there were two alternatives to the third count, and that was as to whether they had found Wright guilty of intimidation or annoyance. The Foreman announced that they had found accused guilty on the latter alternative. His Honor then discharged the prisoner Schroder. He added that he was sorry that the jurors’ duties had been prolonged, as the case had presented certain difficulties. Jurors were then discharged from further attend-

The Foreman drew His Honor’s attention to the fact that it had been very cold during the trial, and jurors wondered if provision could be made for heating. His Honor-. I am sorry you did not mention it to me before. 1 will make representations to the Department of Justice on the lines indicated. The prisoner was remanded for sen tence until to-morrow morning. IN DIVORCE. HYNDMAN v. HYNDMAN. Samuel Hyndman (Mr J. A. Murdoch) moved for a dissolution of his marriage with Harriet Rhoda Hyndman. on the grounds of insanity. Mr F. A. Kitchingham, for the SolicitorGeneral, appeared for respondent. Dr. J. W. J. Childs. Superintendent of the Westland Mental Ho ••• ;1, said Ihe knew the wife c" - ’ o ier. was now a patient al the Hospital, being admitted on September 5, 1909. She had been out on probation four times, the first occasion late in 1909 for a year, and then in 1910 for two months, and on two other occasions between 1911 and 1912. Since that time she had been an inmate of the Hospital, under the Mental Defectives Act. In his opinion, respondent was not likely to recover. The petitioner, Samuel Hyndman, a gold miner, of Rimu, said he was married at. St. John’s Church, Stafford, on May 17. 1906. Witness and his wife lived at Callaghan’s, near Kumara, and at Rimu. There were two grownup children. His wife had been out of the Mental Hospital on several occasions up to 1912, but for the last 23 years had continuously been an inmate. Witness first had to pay regularly 30s a week, then 15s, and in later years, owing to having no money, it had been 7s 6d per week. He had spent all his money on his wife. He was 54 years of age. Excepting his claim, he had no assets. His house and furniture was valued at £250.

To Mr Kitchingham: He had not made any payments since last August. For the past eight months he had been engaged in opening up his claim. To Mr Murdoch: He had paid close on £lOOO to the Department on behalf of his unfortunate wife, and had never been sued by the Department. Mr Kitchingham offered no objection to the decree. His Honor directed that a decree

nisi be made absolute after three mon 1 hs. Mr Kitchingham said that costs had been arranged for. PHILLIPS v. PHILLIPS. The undefended notice of motion by Florence Mary Ellery Phillips (Mr J. A. Murdoch) v. Andrew Janies Phillips, of Hokitika, for a decree nisi, to be made absolute, was granted, with custody of the child to petitioner. CREDITORS PETITION GRANTED. Th.. creditors petition ol’ I’l’wur.' McDonnell ami Griffen and Smith <M' .1. H. Hannan) v. Amos Dowell (ii. bankruptcy) was granted Mr llanmin intimated that the petition avhs not Mining Appeal WARDEN'S DECISION UPHELD. An appeal from the decision of the Warden (Mr W. Meldrum) was made by the Boatman’s Consolidated Gold Mines Ltd. (in liquidation) by one of. the mortgagees. Aliss C. A. Morris, ami the Company, in decreeing forfeiture of the mining privileges of the Company to Alfred .Walker, lorry driver, of Cronadun, and James Comerford. farmer, of Oweka. The appeal was based on points of law alone. Mr Isaac Patterson, and with him Air J. W. Hannan, appeared for the appellants, and Mr L. E. Morgan for the r«‘spond(‘nts. The mdice of appeal set out that the Boatman’s Consolidated Gohl Mines Ltd. and Catherine Morris, two of the defendants, being dissatisfied with the decision of the Warden’s Court in which forfeiture of six licenses for special quartz claims, two licenses for special sites, one license for a dam. and three licenses for water races at Capleston. was decreed, and costs £2O 12s. allowed to the plaintiffs, Walker and Comerford. The appeal was on the matter of law alone, and was given as follows: (I) That the Crown held a registered inti* rest in the mining privileges re-

ferred io in the statement of claim | filed and that no decree or order should have been made without due notice to the Crown. (2) That the registered interest of the Crown in the mining privileges protected the same from liability to forfeiture. (3) r l'liat alternatively the lands referred i, ( iii the statement of claim were Crown lands al all relevant limes and thal the Court hud no jurisdiction !«• make I lie decree of forfeit ure as made. (4) That if the defendant Company no longer Exists in law. then the Court had no .jurisdiction to enter any judgment against the defendants or any of them The Company was duly incorporated under the Companies Act, 1908, but now in liquidation, and having appointed William James Morris, of Reefton, mining investor. as sole liquidator, the mortgagees being Catherine Morris, of Reefton, milliner, and Donald John Cameron, of Masterton, sheep farmer. Mr Patterson said that Miss C. A. JWVrriH, one of the mortgagees, was the only appellant other than the Company. Donald John Cameron, another mortgagee, concurred in the appeal and gave his authority. After hearing the points raised and legal authorities quoted on both sides. His Honor said it was not necessary for him to reserve decision. The history of the case was that there was a company called the Boatman’s Consolidated Gold Mines Ltd., and that Company entered into a contract with H.M. the King through the Mines Department, whereby the Mines Department agreed to provide certain monies for prospecting purposes. Terms were arranged that the money was to bo refunded from gold won, but the Company was not successful. The Crown, he stated, was never a mortgagee. The Crown never asked for a mortgage. The grant was a subsidy' to the Company which was doing certain prospecting work, and was to be repaid if the Company was productive, and this was the only way it could be repaid. In addition, the Company executed a. mortgage to three persons. The title showed that it was issued to a man called Duncan and he assigned it to the Boatman’s Consolidated GohlMines* Ltd. The Company had gone out of existence, and as it was in liquidation steps were subsequently taken which put it out of existence completely’ in 1926. It was now claimed that although it went out of existence it had been held by’ somebody and rents paid, he presumed by the mortgagees, and the licenses kept alive, but apparently nothing was done to the large collection of special quartz claims and so on. Fairly substantial rights to a gold mining ventun* were held and not worked. Two men applied and the Warden decreed forfeiture. There had been no attempt to work it, and now the objection raised was a curious one. The first objection was that because the and was mortgaged to The King, who was not made a party to the case, and that no decree or order should have been made by the Warden without due notice to the Crown. The forfeiture would not hurt the King and it did not lie in the mouth of the appellant to worry about the King. It was not done with the idea of helping H.M. the King, but with the idea of helping themselves. The next point was the mortgage which was on the titles. The mortgagor had disappeared off the face of the earth and therefore the land became escheat to the Crown, therefore these licenses and mining rights have gone by the board, in effect, seven years ago. The mortgagees held the land and had done nothing for seven years and want to be the first to apply as they put in these applications when these proceedings were instituted. The mortgagees had gone by the board and he could not see how one could mortgage still on the title. It seemed the doctrine of escheat did not come into being at all and that being so it seemed to His Honor that the actual position was

that the licenses forfeited by the Warden were still in the title and were still liable to be dealt with by the Warden. There was no suggestion that the Warden did not do what was right. The appeal would be dismissed with solicitors’ costs £7 7s to respondent, and the Warden’s decision upheld. WELLINGTON SENTENCES. WELLINGTON. June 8. His Honor, Justice MacGregor, s r ntcnced prisoners as follows:— Claude Frederick Mallard, breaking, entering and theft, convicted and ordered to come up' if called upon within two years, and to pay the costs of the prosecution. Martin Carr, breaking, entering and theft. 18 months’. John indecent assault on a ■male, four charges, two years’. Albert Durant. breaking, entering and theft, 18 months’.