THE CATTLE STEALING CHARGES.

Hawera & Normanby Star, Volume XX, Issue 2459, 21 June 1893, Page 2

THE CATTLE STEALING CHARGES.

A SENSATION,

YOUNG IN THE WITNESS BOX

Tuesday, 16th June. (Before Major Tuke, R.M.)

The charge against Albert Young and Walter Gibson of stealing on 9ih April two cows, valued at .£l2, the property of T. H. Foy, was begun on Friday and continued on Tuesday. Mr Barton appeared lor the Crown, and Mr Caplen for Gibson.' This case arose out of tbe alleged stealing of Mr McCarthy's cattle, tbe cows being taken from Foy : s paddock and two sceers left behind. One of the cows was sold to a butcher at Waverley and killed, and the hide and head were identified by tbe butcher, by Mr Aiken, and also by Mr Foy.

Much of the evidence was similar to that given in the other charge. The following additional evidence was taken : T. H. Foy detailed the loss of the cows, and identified the hide and head as belonging to one of the animals. Cross-examined—He told Mr Aiken and others he could not swear to the cows. Max Bauer, employed at Smiley's stables, Wanganui—Saw both accused on 10th April; they came to the stables on horseback towards evening; their horses remained all night, and each one paid for bis own horse. Cross-examined—Was certain it was the 10th, because he put it down in a book; could not swear to it being Monday if he bad not put it in the book; tbe horses were in pretty fair condition and did not look as if they had been ridden hard to escape justice ; there was nothing suspicious about the manner of accused; from Waitotara to Wanganui could be done in 2or 2£ hours; a train arrives about 5 ; it would not be possible to come from Waitotara between 4 o'clock and the time the train arrived. John Anderson, jockey, Patea—Was at Wanganui about a week after Patea races, which were on 3rd April; saw both acoused at Wanganui on Tuesday or Wednesday; they were in Dalton's, a tailor's ; Gibson was being measured for a suit of clothes; Young and witness stood at shop door talking; afterwards the two accused and witness went down to Dixon's, another tailor ; afterwards accused talked of going to the railway station to get a box to take their horses to Waverley; witness aßked why they did not ride, and they replied that tbe horses were too tired; Young then said, " Hold on till I run over to the bank and get some ' stamps ' " (.meaning money); while Young was away witness asked Gibson where Young had been getting money, and he replied, " Oh, he's ■been making a bit cattle-dealing lately " ; witness asked Gibson what he (Gibson) had been doing lately, and he said, " I've been doing a bit of driving for him " (nodding at Young, who was coming up the street) " this last day or two "; Young joined them, and invited them to have a drink, which they did at the Rutland Hotel; shortly after witness left them; in conversation one of the accused said they had come from Palmerston ; »>n the evening previous to meeting the accused witness stayed at Mrs Broughton's hotel; while inbed he heard the landlady come upstairs, and call out to the occupants of a room, who they were, and the reply was, " Yoang and Gibson " ; the landlady asked who told them to go in the room, and they answered, " Jessie " ; the landlady then left, Cross-examined—Am not mixed up in this cattle-stealing and had not been threatened with it; did not see why he should be threatened because he was in accused's company; the "boys" might have "barracked" him about it; it was after Gibson had been in the tailor's shop that Ybung went to get the " stamps " ; there was nothing suspicious or mysterious about the accused; they were going about quite openly; Gibson appeared to be working for Young. At this stage, Mr Barton proposed to call as a witness against Gibson bis fellow accused, Albert Young, and, on authorities quoted, a3ke_ the bench to intimate to Young that if he gave bis evidence in an unexceptional manner he would be recommended for a pardon. Mr Caplen objected on various legal grounds, and put it to tbe court that if a prisoner gave evidence owing to any hope of reward, or to any fear, then his evidence was inadmissible. He quoted a recent judgment, which he urged was quite against the course proposed to be taken. A prisoner's statement to entitle the prosecution to use it must be entirely free and voluntary. Further, he submitted tbat to put Young in the box, with such a promise as suggested, would be an inducement to him to commit perjury against Gibson. Mr Barton distinguished the cases on which he rested bis contention from that on which his friend relied, by pointing out that the latter referred to a statement made by a prisoner and then used against him; It had nothing whatever to do with tbe present circumstances, in which it was proposed to ask an accused for evidence not against himself, but against an accomplice.

After considerable argument, The Resident Magistrate thought the prosecution should show that the evidence was free and voluntary. Mr Barton said he would call the witness, and then it could be seen whether he was giving evidence freely and voluntarily.

Albert Young was sworn. Mr Barton—You are a settler living in Manaia ?—Yes.

Are you willing to give evidence in this case ?—Yes, quite willing. Have you had any promise held out to you, or any threat, to induce you to give evidence ?—No.

The R.M.—None whatever ?—No. Mr Barton—You .are willing to give evidence freely and voluntarily ?—Yes. Mr Caplen objected that this was leading.

The R.M.—lt is a simple question. Mr Barton—ls Your Worship satisfied to let the evidence go in ?

Mr Caplen claimed that he was entitled to cross-examine on that part of tbe evidence before the main evidence was taken.

Mr Barton objected. Mr Caplen—How can' the court be Hatisfied until I have cross-examined so as to show the circumstances ?

After argument on this point, Mr Caplen asked—Did not your father tell you that you were to speak out and disclose the whole matter ?

Witness—No, I made a voluntary confession to my father myself. Did he not take you to Mr Fantham ?— The confession was.made voluntarily. Did he not take you there ?~He was there witb mc. '

Was it not upon his advice that you made the qonfession ?—lt wa^. At the request of"your father you confessed ?-rHe advised mc to make a voluntary confession.

Counsel endeavoured to get from witness the words the father had used in advising, but was unsuccessful; witness simply repeating that "my father asked mc to make a voluntary confession."

Before your father asked yon to confess had you asked him to get counsel for you ?—No. I had counsel before I saw him.

What counsel ?—Mr Fitzherbert. You swear you did not ask your father to get counsel for you ?^7-Yes. Mr Barton objected to the cross-exam* ination as irregular; and

The R.M said the question simply was as to whether the confession was voluntarily made. Mr Caplen said that they had it that bis father had commanded him to make the confession. Witness said no, be had not said his father had commanded him. Did you resolve to confess after you came up here, although you v had engaged counsel before you saw your father ? Why did you do that?—-When I came up here and saw how things were I resolved to confess. My mates were turning round on mc and bringing mc into trouble, so I thought I would turn round. You wanted to get round first,?.—Yes, and I got round first. If not, perhaps I would have got last. Perhaps you will still be r round last. Has your confession in the hope of getting a pardon ?—I do not know whether I will get a pardon. Has the sergeant spoken to yon about confessing ?—Not a word. Do you swear do. Have you spoken to him about it ?—Not until after it was made. Why are you fwishing to give evidence here to-day ? m* Question objected to. Mr Caplen submitted that this was the crucial test of the right to oall the witness. The R.M. said wituess need not answer that question. He deoided that the court bad been shown that witness was giving evidence freely and voluntarily. (To witness:) I have to tell you that if you give your evidence in an unexceptional manner you will be recommended for a pardon. I believe that is the regular conrst, Mr Barton ? /* Mr Barton—lf your Worship pleaßes. Witness! then ; gave evidence to the following effectr-I knjow the accused Gibson, and have known him for some years ; I know* Mr. McCarthy's at road; I was there some time in April, on a Saturday night; there were three others with mc; Gibson, Hunter, and Zyleski were the others ; I met Gibson in Hawera, at Kelly's Hotel, I think ; I met him two or three jtimes that day, the last time at 3 to 4 o'clock; I met him accidentally; Hurler and Zyleski were with mc when I met him at Kelly's Hawera Hotel; we met on the street in front of the hotel;;' Gibson and I went towards Manaia, *< and from there to Okaiawa; wei turned off the road, and went through the Maoris' land; we had tea at Conner's hotel at Okaiawa; we stopped two or three hours, and left about 11 o'clock ; we went along the Normanby road and then on to the Skeet road; we were to meet Hunter and Zyleski on the Skeet road; when we got to the Skeet road, we met the other two, got off our horses and had a smoke; we bad a conversation about cattle; Hunter said there were some cattb down the road rounded up to the gate at McCarthy s ; we were all sitting together; I said we would go; "let us be getting on"; the four of us went to McCarthy's ; Zyleski proposed that we should take a mob of McLean's cattle, which were on the other side of the road; I said "No, we won't touch McLean's cattle" ; Hunter and Zyleski wanted to take ; ,them, and they went down, but there was a house there and they were frigntened; Gibson and I remained on the road, and then went on with the cattle; Hunter and Zyleski went on to see if they could get some more on the Tempsky road; there were 23 of McCarthy's cattle; we took the first turning—what I understood was the Tempsky road; we met ene man going into Mr Cameron's place ; did not speak; I was driving back some milch cows out of .the mob at the time; I met another man past Cameron's; I don't know wheth& he spoke; he might have said " good night; I did not hear him, and did not know who he was; I was dressed in a dark suit, with a drab hat ; Gibson was wearing a black suit and a black hat; it would be about 2 a.m. when we met,the second man; we went on to the Normanby road, and down the Inaha road on to the Main South road; we then came on to Hawera ; we put the cattle in Foy's paddock; I came to Wilson's stables, where I left my horse ; the others left mc and I don't know where they went; Gibson stayed with mc until we left tbe cattle ; we parted at the top oi Priqces-street; it was about daylight; Hunter and Zyleski joined us on the Main South road; they had no cattle; they could 'not get any; I did not again see Gibson till Sunday at 4 p.m., in the street; he was with Goodwin, his mate; I wanted to know what time we wonld start with the cattle, and where the others were; Gibson replied that we would not start till after dark ;* I wanted to go before dark ; we talked about getting some tea and getting ready to go; we had a conversation as to how the cattle were to be sold at Waveiley; Goodwin said he was going to McCarthy's and would send us a telegram to Ellis' hotel at Waverley if any thing went crooked ; Gibson went away at the time, andGoodwin and I were together; Gibson said he was going to see about his borse at Coffey's stable; I saw Gibson about 6.30 at the top of Princes street; we met by an arrangement made in town ; went to Foy's paddock; found the cattle bad gone; it was very dark then, being about 7 o'clock—the church bells were ringing; we went into the paddock to see if we could fiad the cattle ; we travelled around, and got across a lot ef rough country, and gullies in there; found them mixed up amongst a lot of other fat cattle; star;ed trying to draft them; managed it with the help of Hunter's dog; the dog did the drafting ; drove them on to the road—what we thought were our own; we had a look through them and found we bad some oows whioh did not belong to us; we drafted out seven or eight cows which did not belong to. us and took them baok; had a hard job to tqll whether we had cows or bullocks in tbe dark; the dogs seemed to know better than we did ; when we got tho cows out we tried to get the rest of the bullocks out which were left; got the bullocks all but two ; didn't want to take any ot Foy's cattle, for fear there, would be a row about them; had a oount, and found we had two too many; went along, and took out two which we thought were cows and put them back in tbe paddock; when we got them all right, we went on with them; stopped the other side of Manutahi for an hour and then on to Waverley; when we got to Waverley we put them in tbe saleyards; Gibson and I went to tbe hotel and gave our horses a feed and bad breakfast; Hunter and Zyleski went to the other hotel; after breakfast I lost the run of tbe others; I went to see if I oould find them, and found the three of them buried in the straw in the loft; the three were Hunter, Zyleski, and Gibson; the stable was Ellis'; I bad a talk with them; they asked mc if I bad entered the cattle, and I said, " No, I think it's your turn this time, Hunter"; "Oh," he said, "You better do it this time. I'll do the next lot—there'll be a big div. next time-"; we argued a bit about it, and I agreed to go and do it then; I did it; I saw Mr Jackson; went over tq the yards, and drafted some heifers from the bullonks; took out three heifers and two cows; then went to Mr Jackson l«ad entered 18 steers and 5 heifers in the name of Munro; stopped about the saleyards until dinner time ; then I had dinner, and after dinner went to the sale again; the others never showed out at ail, but left all the work for mc to do; I put a reserve on tbe cattle, and when they did not come quite near the reserve Mr Jackson asked if he would

sell them and I said yes; after the sale I went and got tbe cheque from Mr Jack-

Bon's son; got £100,1 think; something like that; then went down to the hotel and roused the others out; they were still asleep in the loft; told them the cattle were all sold ; received account sales and a cheque; showed them the account sales and the cheque ; the account sales are burnt; they showed that the cows brought £4 per head, and the steers £4 8s ; can't remember what the total was ; there was some remark about the two cows from Foy's; were frightened there would be a row about them ; I believe it was myself made the remark about Foy's cattle ; the others said it didn't matter—they were gone with the rest; Hunter, I think, said that; I replied, "It doesn't matter to you much ; it makes a big difference to mc if it's found out;" this conversation all took plaoe in the loft; it was about 3 o'clock— th 9 sale was not over; direotly after that we left the loft; we all left to get our horses ; we all got our horses, and rode to Waitotara, reaching there about 4.30; we went into Harle's Hotel, and had a drink; a lady was in tbe bar; we went on to Wanganui; the four of us went; Gibson and I went to Smiley's stables with our horses; tbe others left us near St. John's ; Gibson and I got to Smiley's about 8 or 8.30; we left our horses, there, and went to Mrs Brougbton's hotel; next morning after breakfast .Gibson and I strolled up the Avenue; Gibson said he was going to get a suit of olothes; we went into Dalton's Bhop, and saw Mr McSkinning*, I heard MoSkinning give evidence went to his shop on Monday evening; that is wrong; we didn't go to hisi Shop tilKTaesday morning about 9 o'clock; While Gibson was getting measured I was talking to Anderson outside the door; Gibson came out; they were all watching >mc pretty closely because I had} cheque ; I went to another and got a coat and vest; Gibson and'Anderson waited at the door ; after that we went down the Avenue a bit; we went to the corner of one of tbe streets that comes iDto tbe Avenue; I said, " I'll go across to tbe bank and get this cheque cashed;" I was speaking to Gibson; I believe Anderson was there; Hunter and Zyleski were there, and others: Hunter and Zyleski bad picked us up in the Avenue ; I went over to the Colonial Bank and cashed tbe cheque; I got about £100; I think I got 8 £10 notes, and the rest in singles and Borne silver; I then joined the otberß; I think we had a drink in the Rutland; there were several with us; one was George Spriggins, I think ; Gibson was with mc, and also Anderson, Hunter, and Zyleski; we then went to Broughton's Hotel, and out up the money; we all got an equal share; I got £20 odd; Gibson and tbe others all got the same; when I ordered my suit of olothes I paid £4 for them; that was after I cashed the cheque; I went by myself the second time; Gibson was knocking around ; I met him after I. left the tailor's; Gibson stopped at a Watchmaker's shop in the Avenue, and bought a watch and chain and a ring; I waited outside ; he Bhowed mc the articles; we then left for Hawera; we stopped for dinner at Nukumaru; from there we came right on to Hawera; I stopped at the Commercial Hotel m Hawera; I don't know where Gibson went; I had no authoiity to take McCarthy's cattle, and none of my party professed to have any that I am aware of; Gibson joined us; he got into it the same as I did, I suppose; Gibson was in our oompany at Kelly's Hotel, Hawera, on the Saturday; we were in one of the small rooms; Hunter, Zyleski, Gibson, and myself were together; Hunter was the leading man, and he said we should go that evening to the Skeet road and get a mob of cattle together; he said to Gibson that he had better go with us; Gibson considered for a while, and then said all right—he was " game " for anything ; it was arranged that we should go away, and not be seen together; I fancy Hunter and Zyleski livo in Marton or Feilding; they don't seem to mc to have any home, not about this part; Hunter is about my own build, only taller, very square in the shoulders; very red face, brown moustache, shaved all but moustache, reddish hair, head like a fighting man—pretty- round, like a fighting, man all over, a big fellow, pretty good jjioustache. brown eyebrows, an: ordinary mouth, no marts on bis face; 1 had been with him a good many times; last time I saw him in Marton he was dressed in dark olothes, Boft black hat; Zyleski is a tall, dark fellow, with medium-sized black moustache, and no beard or whiskers, very blaok hair, peculiar walk, very loose about the knees, shuffling sort of walk; saw him last at Marton.

The Court adjourned at 5,30.

Wednesday, June 21st.

The hearing was continued at 10.30. Mr Caplen said that he intended to oross-examine without waiving the objec tions he had made the previous day. Evidence in cross-examination was as follows :—l'was not ordered out of court; I hsard all witnesses ordered out; no one told mc to go out of court; if I was told to go out I would -have gone out; when the witnesses were ordered out of court, I might have been 6itting in the box with Gibson ; I suppose I was; I was sitting there all through; I knew the whole of the evidence beforehand; I heard some of it, and some of it I did not take much notice of; I was forced to sit in the box throughout the trial; I would not have been there if I could have got out of it; I've been in the box when I have been brought in; I have my own ideas why I am fencing; I suppose I oan please my. self whether I answer; Gibson has been with mc several times m the box; he might have been there when I was not there; as far as I know, Gibson was sitting with mc during the whole of. this case; I first met Gibson to speak of this cattle-stealing in Hawera, I believe; I do not recollect any dates; to the best of my belief all dates given by mc in my evidence are correct; do not know whatPdate we out to Okaiawa; don't remember •uy'dates at all; had the conversation at Kelly's hotel, outside, I believe it was sometime during the day we started for Okaiawa; two others were with mc when we met oh the street; I believe we went into the hotel afterwards ; we went into one of tbe small rooms; nothing was done in writing;. we had some drinks; the barman served us, I believe; I don't know his name; it;was nof the proprietor, but the barman—anajd njan; I don't know what drinks we had; not champagne »-no not quite; stayed there about half an hour; we went towards Manaia, I think, after leaving the hotel; I went to Wilson's stables at rear of hotel for my horse; Gibson went Bornewhere else for his horse; it was in the afternoon some time; I don't think I'm mistaken about Gibson being there; before going into the hotel tbe conversation was just on ordinary things; after going into the hotel the conversation was about cattle; I believe I told.Gibson I had taken cattle before—l suppose he knew they were stolen cattle; I don't remember telling him they were Stolen cattle; I don't remember telling ;him we were going to steal cattle that night; I believe Hunter and Zyleski mentioned something about cattle-duffing ; I don't recollect the words; we were not bound by any oath of secrecy; I did not know much about Gibson preyious to that; Gibson made uso of tbe words that he "was game enough for anything" in answer to a. question whether he would go; I might have asked him myself; I don't remember anything else; that was said inside; I believe I went out the back way for my horse ; I don't know where Hunter and Zyleski went; we : were fco meet on the Skeet road; there are, I believe, a few

houses along there; there are two houses where we met; I don't know whose they are; it was a very clear moonlight ngiht; they were waiting for as; they were sitting on log; did not measure tbe log, or did not take a book to sketch all these things; tbe log might have bsen 10ft through ; the horses were feeding there, with saddles on; 1 believe they weie holding them by the reins; there was a revolver there, I believe ; Hunter had it, on his belt, in a leather case; Hunter bad a black gelding; I never looked for any brand; we all rode the same horses as we rode to Wanganui J I don't know where Hunter got bis horst from—he never told mc; the horse was all black; it seemed quiet enoagh; it was a jumper, about 15 hands high; he had an ordinary bridle, with two reins, I believe; he had a breastplate; I did not see the horse unsaddled at Waverley, or any time; it looked a good hack; Zyleski's was a black nnggety horse; might have been a heavier horse than Hunter's, bat not as tall; don't know if it had any brands; had no white that I am'aware of; it was black when I saw it; "it had not beenl colored that I am aware; I think Hunter and Zyleski bad enough color a horse; I think they were a bit clever; I"don't know where. they stabled* their horses; I looked after my own; I ;__on't treble- about anyone else s horses ;-I believe they stabled their horses at Hooper's. ■; r

A CDMMITTAL. Other evidence taken was similar to that in tbe latt oase. , >J r, -t

Mr, Caplen conjended that, with the exeoption of Young's evidence, there was not a little of evidence against Gibson. The aocussd were then cautioned, and committed for drial at the next sitting of the Supreme Court at New Plymouth. Gibson was admitted to bail, which was fixed at th»,_a_.e amount as formerly.