NEW TRIAL ORDERED

Grey River Argus, 30 November 1943, Page 2

NEW TRIAL ORDERED

SUPREME COURT SESSION Charge Against Sawmill Worker The quarterly session of the Supreme Court opened at Greymouth yesterday before Mr Justice Northcroft, On the only criminal charge on the calendar the jury disagreed on two out of three counts and found the accused not guilty on the third. His Honour ordered a hew trial for to-day. The following Grand Jury was empanelled:—E„ Parfitt (foreman), H. E. Anderson, T. A. Anderson. W. D. Berry, F. W. Baillie, A. B. Croudis, A. A. Christensen, W. A. Clarke, S. Dalton, T. W. Dove, L. 3. Davenport, J. McC Eadie, E. Gilmore, J. Finlay, A. J. Gilberthorpe, J. Hazeldine, L. A. Inskster, H. Lamont, W. N. Messenger, A. McDougall, J. M. McNulty. F. J. R. Nott and B. Reynolds.

Percy Henry Birchfield, sawmill hand, aged 28, was charged: (1) That on or about October 13, at Moana with intent to defraud, he did obtain from John Charles Baker the sum ot £l2l by falsely preiending that ne was the owner of and entitled to dispose of an Austin 7 saloon motor-car; that on or about October 14, at Christchurch, with intent to defraud, he obt lined from the said John Charles Baker the sum of £l9 and a post-dated cheque for £2O by means of the said false pretence; further, that on or about October 14, at Christchurch, he stole an Austin 7 saloon motor-car.

Addressing the Grand Jury, His Honour pointed out that the charges all arose out of the one transaction.

The Grand Jury returned a true bill on all counts.

The accused pleaded not guilty to all counts.

Mr. F. A. Kitchingham appeared for the Crown and Mr. J. W. Hannan for the accused.

The common jury was as follows: G. H. Russell (foreman), R. Steel, H. E. Westwood, N’. L. Cowan, W. P. Boucher, I. E. Steel, P. Sweetman, F. A. Saunders, R. Girvan, A. W. Hancock, T. H. Jones and-R. JAvery. Mr. Kitchingham outlined the case for the prosecution. Thomas Bertie Baty, motor engineer, said he remembered the accused coming to his place of business on September 25 to buy a car. The total purchase price was £l5O. A Ford was put in as part payment and the purchase money was to be paid at the rate of £6 a month. The agreement stipulated that the car was not to be sold till it was paid for in full. Promissory notes were paid. Later he told Birchfield that he had information that he was endeavouring to sell the car, and showed Birchfield a letter 'he had received from a man called Roberts. Birchfield did not seem to be impressed. He did not say that he had sold the car. Two days afterwards witness learned that the car was sold and immediately went to Christchurch to see Baker. On return he saw Birchfield at Haupiri. -Birchfield practically admitted the whole business and said he was in financial difficulties and that it was either one course or the other and that he had taken this course of selling the car to get the money. He signed an agreement undertaking to pay Baker £3 a month until £llO was paid and also paid ovei’ a cheque lor £5O. Witness also made a memo from accused’s cheque book, showing amounts which accused said were paid to various people out of the monev he had received from Bakei Witness bad repossessed the car. To Mr Hannan: The purchase was arranged on a Saturday at aoout 11.30. He had never had anyone r«ad the hire purchase agreements—they were taken as read. He did not remember having the agreement with him at Haupiri. He would not say that he told accused that if an ‘nrmnconiont was made to lepay Baker’s money, accused would hear nothing more about it. Baker wanted his money and witness had agreed to see Birchfield about it. Birchfield s father told witness when he was leaving ‘.na* he would endeavour to help his son. Witness did not make any pledge that there would be no police p: cce<T.ngs if the accused met ?he paymenfs. He showed the ac-cu-ea and his father a telegram which he had received from Baker. He thought this telegram stated that if satisfactory arrangements were not made for the repayment of the money the matter would be: put m the hands of the police. On the evening of his visit to Haupiri, he read the agreement with Birchfield to Baker over the ’p.hpne and Baker was not prepared to' accept it. ■ To Mr Kitchingham: He did no<, remember whether the telegram was received before his visit to HauPI To His Honour: It was the practice when an agreement of that sort was entered into to sign papers enabling the change of ownership to oe registered. It would then appeal to Baker that the car was Ba’cnfield’s. . John Charles Baker, motor mechanic, of Christchurch, said that in October he was in the market to purchase a car. A friend nameu Roberts handed him a letter he nau received in reply to an advertisement for a car. In this letter P. H. Birchfield offered an Austin 7 car for sale. Witness met the accused at Moana on October 13 and agreed to buy the car for £l6O. Witness paid a cheque for £l2O and fl in cash, and in Christchurch gave the accused a cheque for £l9 and a postdated cheque for £2O. The registration papers were handed over the same day. Mr Baty arrived at witness’s place the following Monday. Witness stopped payment of the cheque for £2O, and on the following Wednesday made a complaint to the police. He had since received a cheque from Mr Baty for £5O. If he had known the car was held under a hire-purchase agreement he would have tried to make some arrangement with Baty. To Mr Hannan: When Baty called witness had not notified change ot' ownership to the authority. The car was still registered in Birchfield’s name as ownerTo His Honour: When he saw the car at Moana Birchfield showed him the papers and witness took this, together with fact that Birchfield had answered the advertisement as evidence of ownership. Herbert Edward Knight, senior detective, at Greymouth, said that on October 22 he received a complaint made by Baker at Christchurch. On October 29 at Haupiri he arrested Birchfield. At Greymouth the accused made a statement admitting the facts, and saying he was prepared to plead guilty to a charge of obtaining the money by false pretences. He thought he could repay the money in four months. To Mr Hanhan: Birchfield expressed .a wish to have tlie matter disposed of as quickly as possible, and there was a Court sitting three days afterwards. The statement was worded as a result of a fair amounr of discussion between witness and the accused. He may have mentioned to the accused that there was provision in the > agreement that he must not re-sell the car.. ,■ To His Honour: He had not search-

ed .to see how the form was filled .up when the car was transferred from Baty to Richfield. His Honour pointed out that in the form Baty had appeared to transfer the car to Birchfield as absolute owner. This had misled Baker and it may have misled Birchfield. He asked if it would be possible to have the original form produced. When the Court resumed after the luncheon adjournment, Mr Kitchingham said that the form which was filled in had been sent on to Wellington in the usual wav and Was not available. This concluded the evidence. Counsel then addressed the jury and His Honour summed up. The iury retired at 3.7 p.m. and when thev returned after a retirement of four hours, the foreman stated that they had disagreed on the first 'two counts and found the accused not guilty on-the third. Asked by His Honour ’f they might not reach agreement if they deliberated longer, the foreman replied in the negative. His Honour then discharged members of the jury from further attendance. Mr Kitchingham’s application for a new trial was granted by His Honour, who set it down for 10 a.m. today. Mr Hannan asked if the effect of a verd’ct of not guilty on the third count did not mean that the accused was not guilty on all counts. His Honour said he would dicuss this and Mr Hannan’s application for renewal of bail in chambers. IN DIVORCE

The following petitions in divorce were heard: —

William Marchbank Brown Smith, formerly of Fairdown, now of the armed forces (Mr M. B. Scully) v. Daisy Cordelia Smith, on grounds of desertion. Petitioner gave evidence that his wife left in May, 1937. There had been three children of the marriage. Harriet Smith, petitioner’s sister, gave corroborative evidence. — Decree nisi granted, to be moved absolute in three months, petitioner being given interim custody of the children. Sydney Stewart, of Coal Creek, farmer (Mr J. W. Hannan) v. Doreen Ethel Stewart of Christchurch, on ground of separation. Petitioner said he was married in 1926 and there were two children. In August, 1939, he and his wife entered into a separation agreement and had lived apart ever since. Corroborative evidence was given by J'ohn Baty.—Decree nisi granted to be moved absolute in three months. Leslie Wilton Russ, of Camerons (Mr Hannan) v. Bertha Mary Russ, of Taumarunui, on grounds of desertion. Evidence had been given in this case at the previous sitting of the Court, and evidence of identifica; tion was now produced.—Decree nisi granted to be moved absolute in three months, petitioner being given the interim custody of the three youngest children. Estelle Margaret Marsh, of Christchurch (Mr M. B. Scully) v. Douglas Marsh, of Greymouth, on grounds of separation. Petitioner said she was married in May, 1939. and there was one child of the marriage. In August, 1940, she entered into a separation agreement with her husband and had not seen him since. Petitioner’s father, Campbell Ballantvne, gave corroborative evidence. —Decree nisi granted, to be moved absolute in three months, petitioner to be given the interim custody of the child. ON APPEAL The Conservator of Forests (Mr F. J. Perham), represented by Mr F. A. Kitchingham, appealed from the determination of the Warden, who inflicted a fine instead of forfeiting certain timber rights held by the South Westland Rimu Timber Co., Ltd., represented by Mr W. D. Taylor, for failing to comply with the terms of their license. After hearing lengthy legal argument, H's Honour said that the appeal raised two questions, first, whether the Warden had jurisdiction, and. secondly, whether the determination of the Warden was right if he had jurisdiction. On the question of jurisdiction he had some difficulty at that stage in determining the matter as it would require more careful studv of the various Acts. But he had formed an opinion favourable to the respondent in the second matter and it was respondent who had raised the question of jurisdiction. He rested his decision in support of the judgment of the Warden in the matter of the special circumstances which justified him m imposing .a fine instead of forfeiture. It was "not till the rights had been taken'over by the respondent company that anything substantial was done to use them effectively. It would have been difficult to procure shipping for Okarito port through which it was proposed to ship the timber. He was satisfied on the evidence that the rights could not have been profitably worked without the provision of better transport. He was satisfied that all the merits rested with the respondent company, which was entitled to maintain the order made by the Warden. Jhe appeal would therefore be dismissed.