NOT GUILTY

Hawke's Bay Tribune, Volume XVII, Issue 210, 19 August 1927, Page 3

NOT GUILTY

ALLEGED ATTEMPTED FRAUD BURGE BROS. ACQUITTED IMPASSIONED ADDRESS BY COUNSEL. The case in which Frank Burge and Oliver Burge pleaded not guilty to a charge ot allegediv attempting to defraud C. and A. Odlin. of Wellington, was concluded in the Supreme Court at Napier yesterday afternoon when the jury returned a verdict of not guilty. Mr. H. U'Leary appeared for the defence, while Mr. J. Morling was Crown Prosecutor. Upon resumption Thomas Hadley continued giving his evidence on behalf of the defence. He stated that a certain pile of timber had been sent and this was supposed to have been extra quantities from loads.

To Mi Morling witness stated that load 624 was retallied after Mr. Potts took over. The copy left in the book was not considered of very great importance and sometimes this docket was not altered though the copies sent to Odlin’s and to Burge Bros, were altered.

Mick Edwards, employed by Burge Bros, at the mill, stated that ordinarily he did not make out dockets, being engaged more particularly at the mill itself. He had seen several lorries loaded. Just before an employee had left witness bad overheard the employee sav “that he would get it on to the Burge's and Hadley if he had to wait a life-time.’’ Witness did not know of any trouble to lead to this remark.

'Thomas Henry Smith, lorry dnvei employed by Mr.. Thompson, stated that when a load was weighed in Hastings recently he was the driver. There was over 5500 feet of timber on that occasion.

Replying to Mr. Morling witness said that the docket given to him on practically every occasion was ‘he only one he saw. Arthur A. Kennedy, civil engineer, ot Napier, stated than ne nad Known the accused for some time to be honest, sober, and good citizens. This concluded the evidence for the defence. COUNSEL'S ADDRESS. In addressing the counsel for the defence Mr. O’Leafy stated that before proceeding with the details of the cane there were one or two observations that he would like 4o make. During the cou'se of one's professional life, he said, one gets the privifege of defendin" iu.»u» different types of people and every shade of iniquity, tn a case where the clients are middle-aged, respected and reputable citizens tnere tans on counsel a very onerons respousiollity. One felt that one may miss somo vital matters, some vital questions that might make all the difference and the speaker felt it incumbent upon himself to appeal to the jury to help in the task by legitimate and lawful means. “It ought occur to you,” he stated to the jury, “that counsel for the defence did not bring forward some point which you perhaps thought of interest. Well, I wish to point out to you that von are entitled to put forward on behalf of my clients anything that has occurred to yourselves during the course of this hearing.” Dealing with the facts of the case, "ounsel pointed out that the Crown was obliged to nrove its charge against Frank and Oliver Burge and the proof had to be clear, trustworthy and convincing. Counsel submitted that, the Crown nan railed in its onus to prove the charge. He further explained that the iurv was asked to do one of three things, convict both of the accused, acquit both or convict one and acquit the other and each man’s case was to lie considered on its merits. He felt quite confident that the jury would acquit both. Apparently a quantity of timber was loaded at Burges’ mil’ where a docket was made out and this was delivered to Odlin’s yards. Subsequently, the Crown contended, the figures were altered. “You are asked to infer that Burge Bros, altered those figures and by so doing intended to commit fraud. Not only that but that they did commit breaking and entering as the dockets had gone into Odlin’s office.” Counsel contended that this allegation was far-fetched and had not a tittle of evidence in support of it. “You are led to believe by the Crown that one or both of the accused, or someone arranged by them, entered the office and altered the figures. If you are not satisfied that this is the case then the Crown’s case fails. Practically the whole of the Crown’s case rests on the evidence of Nicols,” declared the speaker, who explained that Nicols had kept a tally in a notebook which he said he had had in his possession on March 17. yet the defence had shown that a brother-in-law of Nicols’ had not let the book out of his possession until the last week in March. Counsel contended then that Niools could not have made the entries at the time but put them in at a later date and so were not trustworthy. There was abundant evidence that alterations to the dockets were frequently made at the mil! for various excellent reasons as shown by the evidence.

“Nothing that has happened has been allowed to go past those who are behind this prosecution,’’ declared counsel, “and it has all been brought forward. There was a fire in Burges’ mill and the inference has been made that the accused started that fire so as to burn any documents that might, be useful in this case. This case must have been a tedious one to you but I cannot but help point out this fact. To you and to myself this trial is but a passing incident in our fives and von have been brought here to say whether or not the Crown has upheld its charge. What I want to point out is that the issue in this case is everything to the two men in the dock and so as not to do any injustice to them I ask. entreat, 1 even go so far as to insist that you give every consideration to the details. Gentlemen, if you are satisfied that the Crown has conclusively proved its case I don’t ask you to acquit hut what I do ask is that if the Crown, in your opinion, has not proved its case beyond a shadow of a doubt then acquit these two men. The Crown Prosecutor (Mr. J. Morlmg) did not elect to address the jury. HIS HONOUR SUMS UP. Thereupon His Honour summed up the case. “These two men were charged with attempting to defraud

£199 from Messrs Odlin and Co. It is the duty ot the jury to assume that the accused were innocent aau until you are satisfied mat the Crown has brought forward evidence which had proved beyond all reasonable doubt that the men were guilty of the charge then you must acquit them,’’ charged His Honour. Mr. Justice Ostler then went on to say that there certainly nad been a lot ot tedious details in the evidence and the point raised by the crown was that twelve dockets had been delivered to Odlm’s and the figures had been increased so as to indicate that a greater quantity of timber had been delivered. Mot one docket, he pointed out, had been submitted but quite a number and in this respect one of the witnesses for the Crown had stated that there were several strange figures which, however, he would nor definitely charge had been written bv one ot the accused. The witness had said that they were curiously alike. In addition Nicols, the yardman, had stated that he had taken a note of the totals of the tallies when he ‘O.K.’d’ the dockets. It the jury accepted that ■as being true then their duty was clear. However, an attempt had been made to show that Nicols could not have made some of the earlier entries in the book and it was for tne mry to decide whether this was possible. The defence was that none of the dockets had been altered after reaching the office of Odlin’es All had been made at the mill before going to Odlin s. Again His Honour pointed out that not just one of the dockets had been altered but several of them and the defence was that they hud been altered because it had been found that the lorries could take more than the load indicated when the docket was made out. “You are asked to assume that the alterations were made at the mill on the general information that sometimes alterations were made there but it was noticeable that not one witness nad stated that he had made the alterations,” stated His Honour. Continuing. he said that from the evidence it was shown that three copies were taken, one was kept at the mill, the other by Burges’. vet neither of these had been produced. The defence had endeavoured to show that the copy at the mill was not considered or any importance. It was of interest, however, to note that on April 21 there were tally boards in existence from which one witness had been able to learn what extra timber had to be sent. Yet these boards had not been produced, yet thev were of vital interest to the defence. In conclusion His Honour charged the jury to carefully consider the details and return a verdict in accordance with their beliefs. THE JURY’S VERDICT. The jury retired at 3.42 and returned 75 minutes later with a ver diet of not guilty in respect to each of the accused.