SUPREME COURT.

Lyttelton Times, Volume XX, Issue 1165, 3 December 1863, Page 4

SUPREME COURT.

[ Tcesday, Ist Decembeii, 1863. (Before his Honor Mr. Justice Gresson.) r The Court assembled at 11 a.m., the learned judge 1 taking his seat at that hour. The Grand Jury was composed of the following r gentlemen: M. P. Stoddart (foreman), H. E. Alport, » W. C. Beswick, J. Birch, T. H. Potts, T. F. Peel, J. T. Peacock, G. A. E. Ross, G. Rhodes, W. Reeves, G. F. Stewart, D. H. Sneyd, E. M. Templer, F. Thomson f C. O. Torlesse, C. W. Turner, J. H. Ward, A. e! > White, T. B. Winter, J. Wylde, C. H. Vigors, Esqs. The Grand Jury having been sworn, his Honor ' delivered the following charge:— T Mr. Foreman and Gentlemen of the Grand Jury,— , The cases in the calendar do not appear to nie to require my particular remark. 5 The committals for cattle stealing are so nume--5 rous as to lead to the inference that the crime is in--3 creasing in the province, but this is not surprising 3 when we consider the large number of persons en- > gaged in cattle driving to the south to supply the ' demand occasioned by the vast population on the I gold fields. I have no reason to think that crime generally is 1 increasing in the province in a ratio faster than that 3 of the increase of the population, and I observe with 1 great satisfaction that the proportion of committals, t except for drunkenness and disorderly conduct, is 5 extremely small. I am led to infer from this fact, that the rule > which has for some years past been in operation * here and in some other parts of New Zesland, in 7 virtue of which a prisoner is able to obtain a remission of part of his term of imprisonment by good ) conduct, works satisfactorily, and that the reforma--1 tion begun in imprisonment is real and permanent, 1 It is idle to think of a covnplete system of prison - discipline in the present stai;e of our gaols, or to ex--2 pect that without adequate appliances any consider--3 able measure of success can be obtained; but public j interest has been of late so much awakened upon the - subject, and the system adopted in Ireland by Sir r William Crofton has proved so satisfactorily how e much may be accomplished by judicious discipline e uniformly enforced, that we may reasonably hope 1 ere long to profit by the experience of the mother- ; country. 3 It will be satisfactory to you, gentlemen, to learn s that most of the lunatics have been removed from - the Lyttelton Gaol to the temporary asylum, and 1 that the change is visible already, within a few f weeks of their removal, in the improved health, r cheerfulness, and traotability of more than one of - the patients. j Gentlemen, I regret, that the day fixed by procla--3 mation for commencing our quarterly session of oyer t and terminer and general gaol delivery, should have i been selected for opening the Ferrymead branch of - the Lyttelton and Christchurch railway. It is a pity 3 that the jurors, witnesses, and other persons in atten- - dance on the Court, should be deprived of the full 3 enjoyment of the holiday which has been proclaimed 3 in honor of the occasion; but, Gentlemen, however - cordially I may rejoice at the event which is to be i celebrated to-day, I cannot admit it as affording a 3 justification for delaying, by a single day, the liberr ation of such of the prisoners awaiting trial as may } be proved, by the verdict of their fellows, to be innof cent of the crime wherewith they are charged. The - question is one of right and liberty, not of mere i arbitrary discretion. i Gentlemen, I will not detain you longer; when you shall have disposed of a few of the bills jvliich will be 1 laid before you, I shall be happy, should you desire s it, to excuse your further attendance for to-day. The Grand Jury then retired. I The following true bills were returned :— John McGhee for bestiality. i Owen Davidson for cattle stealing, on three > indictments. i George Eraser for assault and attempt to rob. The case of William Merritt, for perjury was, on : the application of Mr. Slater, postponed until the i next session of the Court, for the production of an ■ important witness who was absent in Auckland. : John M'Ghee was convicted of an attempt to commit the crime of bestiality, and was sentenced to > two yeaas' imprisonment with hard labor. Wednesday, 2nl> December, 1863. (Before Mr. Justice Gresson, and a Common Jury, ; of which Mr. Joseph Backhouse was chosen foreman.) The Court resumed its sitting at 10 a.m., his i Honor taking his seat at that hour. ASSAULT, WITH ATTEMPT TO 808. ! George Eraser was indicted for the above offence. The Crown Prosecutor conducted the prosecution, i The prisoner, who was undefended, pleaded not ; guilty. . The Crown Prosecutor, having opened the case, called, as the first witness, John Errickson, the , prosecutor, who stated as follows:— lam a carpenter, residing at Purau. On the 22nd i October last, I was in Lyttelton. I was standing i on the wharf waiting for a boat. I left the pier : and went to the Canterbury Hotel, where I met the prisoner. We entered into conversation. A quarrel took place between us, and the prisoner used some threats against me. I offered to fight him for £20. I produced the money in two ten-pound notes. Some persons in the room suggested that instead of fighting, we should pay for glasses round. I paid for the drink, changing one of the notes for that purpose. I then entered the billiard-room, where I remained for some time. Subsequently I left the hotel by the back door, and went up Oxford street, towards the Queen's Hotel, passing along London street. As I passed Mr. Walker's shop in that street, the prisoner came up to me, clasped his anus around me, and tried to throw me down. I fell o" my knees, and he then put his hand into my trousers pocket. I struggled and got up, and the prisoner withdrew his hand from my pocket. I called " police," and the prisoner left me, and went towards the Railway Hotel. I believe that he entered the hotel, but I cannot positively say, as 1 lost sight of him amongst the crowd which was assembled there. I did not lose anv money, us my purse was not in the pocket into winch the "prisoner put his hand. By the Prisoner: The occurrence took place about 7 p.m. I was not sober, but I was not drunk. By the Court: The night in question was a dark one, there being no moon; it had been raining almost all day. I swear positively that the prisoner was the man who threw me down; during the sculHe no word passed between us ; I did not recognise the prisoner by his voice ; I had no opportunity of doing so. Whilst we were in the Canterbury Hotel, I did not observe that the prisoner was wearing white trowsers. The man who threw me down had on white trousers. I swear most distinctly that the man who attacked me in London street was the man whom I offered fight in the Canterbury Hotel. I did not know his name. I mentioned the matter to a policeman, a" l ' we looked for the prisoner, but for some time without success. Maurice Ivavanagh, a young lad employed on board | the schooner Dred, was the next witness, and corroborated the evidence of the prosecutor with to the quarrel which took place at the Canterbury Hotel. Witness saw the money produced by '' IL> prosecutor, who offered to stake it upon the li?W' Witness and the others left the hotel, the proseciitoi preceding them along London street. Witness saw the prisoner knock the prosecutor down ; the prosecutor got up, and called for the police. By the Court: I mentioned to a boy named i bos. Simms that I had seen the prisoner attempt to ro the prosecutor. , By the prisoner: Whilst in the Canterbury the prosecutor gave me a glass of ale and halt-' 1 crown. By the Court: I identified the prisoner by h>> dress, and not by his features; it was too darK me to see his face. James Reed, a youth employed by his father,, • carter in Lyttelton, was then called, and corrobora u the evidence of the previous witness as to the il . ss ' l upon the prosecutor in London street. The P ns< j'j tc at the time was dressed in a blue jumper and trousers. , t]lC George Spray, a police constable, corroborate' evidence of the other witnesses, and stated li< apprehended the prisoner on a charge of ilS!-a '' and robbing the prosecutor. After he had do witness gave him the usual caution. The l' r . told him that the prosecutor and himself hau • quarrel in the Canterbury Hotel. The witnes te detailed the facts already stated as to the a

and the money being staked.) The prosecutor a sober, but had evidently been drinking. This was the case for the prosecution. The prisoner, on being asked if he had any defei to offer, denied the charge, and stated that if he 1 been guilty he could easily have escaped. He v a sailor, and could have found employment in any the ships which were about to leave Lyttclton. The Judge, in summing up the evidence, remark that the whole case hinged upon the question of id< tity. There was no doubt but that the prosccm had been assaulted; the question was who had bt guilty of the act. (His Honor read over the eviden commenting upon it as he proceeded.) If the Jn found that the evidence as to the guilt of the pr oner was conclusive, the would be bound to conv: him; but, if they were not convinced of theidentity the prisoner, they must extend to him the benefit such a doubt. The Jury, after a short deliberation, returned verdict of "Not Guilty," The prisoner was accordingly discharged. CATTLE STEALING. Edward Owen and Wm. Davidson were indicti for the above offence. The Crown Prosecutor appeared for the prosed tion. Mr. Harston and Mr. Travers appeared for tl prisoner. Mr. Duncan, having opened the case, called as tl first witness— Wm. Coup, who stated as follows: I am a farmi on the Island of Kaiapoi. In April last I ownt some cattle,—about 50 altogether. Some were c my farm, and some on the run contiguous to tl farm. In the month of April last I missed seven < the cattle. All the cattle were branded with m brand, W.C., on the near hip, and they all had a ci out of the near ear. (Witness here described th colour, &c., of the cattle which he had lost.) I ha\ not seen some of the cattle since that date, but have seen the rest of them. I have identified ther as my property. I have this day seen in Chrisi church three of the seven cattle which I had lost, know the prisoners, but did not before September las I sold some cattle to Mr. Mein, but never sold hiti any of those in question. The beasts averaged thre years. The brand W C was perfectly distinct on th cattle winch I have lost. By Mr. Travers—A considerable number of stra; cattle are found on the runs near the Waimakariri iu consequence of the last season being a very dr; one, there was a large number of cattle there. I d' I do not know if there was more than a usual nambe of cattle from Wellington. I have seen some of m; neighbours mustering stray cattle about my run, an< the runs adjoining it. Stray cattle sometimes mingli along the river bed. It is almost impossible to con fine the cattle to any particular spot. I am in thi habit of cutting out my cattle from amongst th< neighbouring mobs. I muster my cattle as we haveoc casion. A person named Storer lives near me; he know! my brand, and it was arranged between us that he shonld inform me if there was anything wrong with my cattle. I received intelligence from Mr. Weil that some of my cattle which I had lost, had beer recovered. When I got possession of them I found that some bore additional brand of T C: one steci which I had lost returned to me twice; the first time it had no additional brand; the second time it had. After making every possible research, I wrote tc Mr. Re veil, mentioning my loss. Previous to this 1 did not mention my loss the police. I advertised my loss in the newspapers; soon after I had a letter from Mr. Cook, with reference to the animals which I had missed. I have not a shadow of a doubt as to the identity of the beasts which I have seen: they belong to me. Robert Coup : I am the son of the last witness. I assist my father in the management of the farm. I know all the cattle belonging to my father. He had in April last, about 30 head. They were all branded W.C. on the near hip, and they were all ear marked, a bit being cut out of each ear. In the month of April there was a number of stray cattle on our run. In the course of the month I missed seven head, six steers and one heifer. These were all branded WC, and ear marked. Some were extra branded F on the off rump. The heifer returned to the best of my recollection, about the middle of July; the steer returned shortly after, and it was branded T over C. I saw two of the steers at Mr. Chisnall's paddock, near Fendall Town. They had no additional brand. I have seen three of the cattle this day in Mr. Rule's paddock. (The skin of one of the animals was produced in court, and the witness recognised the brand TC conjoined, but failed to recognise his father's brand. He stated his belief that it was the skin of one of the beasts which his father had lost.) Examination continued: I never knew the prisoners until I saw them in the Resident Magistrates' Court. I never sold them any cattle. Thomas Cook—l am a butcher in Christchurch, I know the prisoners; I saw them in April last and spoke to them about some cattle which I wished to purchase. The prisoner Davidson said that some of the cattle belonged to him. Mr. Travers objected to the question being put, as he thought it was unjust to the prisoner Owen, that he should be prejudicated by any statement made by his fellow prisoner. His Honor, however, over-ruled the objection. Examination continued—The prisoner asserted that they had brought the cattle from the Waimakariri, and I agreed to purchase them at £10 per head. I got a list from the prisoners of as many of the branded as they could account for; three were unbranded. There were seven left of which they did not give me the brands. I did not ask them for the brands. 1 have seen three heads of Coup's cattle today: three steers and one heifer. They are a part of the number which I bought from the prisoners. (The witness here inspected the skin, but did not recognise the tar-brand which he expected to find on it. He recognised the T C conjoined as his brand.) Examination continued—l instructed a man to tar-brand the cattle; I afrerwards saw the cattle in Mr. Chisnall's paddock, with the exception of two which I sold. The whole number of the cattle purchased by me was twenty two. Mr. Coup subsequently claimed four of the cattle as his property, and removed three of them. I told the prisoner Owen that after the information was laid, Coup had claimed the cattle By the Court: I took the list of brands myself. The letters were so indistinct that they might have been W G or W C. By the Court: The cattle which I have seen today in the stockyard, and which I recognise were among the branded ones. This was the case fpr the prosecution. For the defence, Mr. Travers called Thomas Henley, who stated as follows: I am a stock driver. In the month of April last I accompanied the prisoners who were looking after some cattle near the Waimakariri. We met some of the persons in the employment of Messrs. Caverhill and Templer. We saw several small mobs of cattle on an island there. We cut out twenty-two. We only brought up about one-half of the mob that was there. It was in the afternoon that we drove them to Christchurch. We drove them along the public thoroughfare, and put them in a paddock behind Meddings' hotel. By Mr. Duncan: I was employed by the prisoner Davidson to drive the cattle in question. He mentioned some brands of the cattle which he wished me to drive, but I swear positively that I cannot recollect the brands. He told me that he was going to collect them for another another person —a Mr. Morrison—who used to import cattle from Wellington. All the cattle we found on the island were branded Z. After we had collected the cattle, we began to cut out those which were wanted to be sent to Christchurch; the prisoners pointed out to me the beasts which were to be cut out. The whole mob, when rounded up, consisted of about fortytwo. The prisoners did not tell me how many beasts they wished to collect. I cannnot swear how many cattle there were when the mob was rounded Up; I have had some experience in cattle driving, and I should say that there could not have been more than forty or fifty in the mob. I do not remember anything being said about marks, brands or numbers. The prisoners did not make any remark to me as to who was the owner of the cattle. All the cattle which we cut out and drove to Christchurch were branded, with the exception of three. I do not remember the brand; I cannot tell if they bore the brand mentioned to me by the prisoner Davidson. The three unbranded beasts were yearling calves. I did not notice if any of the cattle were ear-marked. I did not observe either of the prisoners taking any notice of the brands; they showed me a list of brands in the morning, before we left Christchurch. ' I should not recollect the brand if I saw them again. • About forty cattle were named to me as branded. I i do not recollect if the prisoner Davidson mentioned , to me that the cattle of which we were in search be- ( longed to Mr. Morrison. I have known him (Davideon) for about a twelvemonth. I have occasionally - Assisted him to drive cattle. J3y the Court: The prisoner Davidson showed me f A list of brands, and said that the cattle so marked were those he was going to look after. When we had rounded up the cattle, I saw the prisoner David- ( son looking at the list of brands. 1 Robert Ross : I know the prisoners, they were ( engaged in the early part of the year to driye a mob of about 1000 cattle for Messrs. Studholme and . limes, from the River Selwyn to the Waimati. 1 Some dispute took place between the parties; myself, 1

as and Mr. W. K. Macdonold were appointed arbitrators. The cattle came from Wellington. I assisted the importers to count them. I do not distinctly ce recollect the brand. I have sold several cattle marked ad W G for Mr. Bird; some were purchased by Messrs. as Studholme and Tnnes. I have seen some steers and of cows this day in Mr. Rule's stockyard. I did not see any branded WGor WC. In the dispute between ed the parties an award was made. [This agreement, 11- which was put in by Mr. Travers, was proved by or Mr. Mark Sprot.] Examination continued: By the ?n terms of the award the prisoner Owen was to have :e, ten head of cattle, lost by him whilst driving for 7 Messrs. Studholme and Innes. The prisoner Owen s- asserted that the ten head of cattle were lost on the st the north bank of the Rakaia, J had no conversation with the prisoner Owen respecting marks or )f brands. By Mr. Duncan: I have, as I said, sold several a cattle for Mr. Bird, but Ido not know if they were ear-marked. By Mr. Travers; a great number of cattle imported from Wellington are ear-marked. Robert Hicks, I am a stockman in the employ o$ Mr. Thomas Rowley. I have seen numbers of cattle imported from Wellington: they were often branded WG. I saw a mob of cattle last April in Medding's paddock. I went with the prisoner Davidson to see if there were any beasts belonging to Mr. Bird amongst them. I saw twenty or twenty two; by the low condition and by the brands I should have taken them to be imported cattle. I have seen some cattle , to-day, but I cannot say if they are the same which £ I saw in Medding's paddock. The prisoner Davidson asked me to go and look at the cattle because ® I knew Mr. Bird's mark so well. I recognised one 1 bullock as belonging to Mr. Bird. I told both the 7 prisoners that I considered the cattle which I saw in a Medding's paddock were ship-cattle. I know that * many of Mr. Bird's cattle are branded W G on the " off-rump. Nearly one hundred of Mr. Bird's cattle were lost in consequence of their being driven to the 1 river Selwyn: some were found on the plains, and " some on the Waimakariri. The season was very dry: between Christehurch and Weeden's some of the • cattle got tutued, and we were obliged to leave them 1 behind. ; By Mr. Duncan: I did not see Mr. Bird's mark ! W. G. or W. C. on any of the cattle in Medding's paddock. I know that some of his cattle are marked with that brand. Previously to my going to | Medding's. the prisoner Davidson told me that himself and Owen were going to the Waimakariri to | get some cattle in for Messrs. Studholme and Innes. The cattle had been purchased from Mr. Bird. The prisoners did not tell me that they were going to collect any cattle for Mr. Morrison. Charles Ollivier: I was formerly manager of Mr. Studholme's run. I remember some cattle belonging to him being lost after delivery. Some were found but not all. Some were found near the Waimakariri, and some on the plains. The cattle were branded variously. I cannot swear to any particular brand. Some were ear-marked. This was the case for the defence. Mr. Travers for the prisoners, remarked that the felonious intention in taking the cattle in question was rebutted by the fact that they were taken by mistake, the prisoners having removed them under an erroneous supposition of ownership. He drew the attention of the jury to the fact that it was very difficult to discriminate between the parts which the prisoners had taken in the transaction, and dwelt emphatically upon the open manner in which they had acted. There had been no attempt at concealment, nor was there the least appearance of any surreptitious removal of the cattle. The prisoners had been guilty of a trespass and not of a felony. Mr. Duncan replied to the arguments of Mr. Travers, contending that it was his duty to press for a conviction against both the prisoners. He could not admit that the plea set up by the prisoners that they had taken possession of the cattle under an erroneous supposition of ownership could be supported. He could not suppose that the jury could entertain the supposition that any such imagined right could justify the prisoners in going about and cutting out of a mob any such cattle as they might choose to claim. The award, upon which so much stress had been laid, was only for ten head of cattle, whereas it was proved that they had taken possession of twentytwo. He thought that it must be clear to the jury that both the prisoners were actuated by a felonious intention in possessing themselves of the cattle. The hurried driving of the cattle and the hasty sale | to Mr. Cook were in direct contravention to the statement that the prisoners were acting as the agents of a third party. His Honor summed up the evidence, reading and commenting upon some portions of it as he proceeded. The jury, after retiring for a short time returned a verdict of " Guilty," accompanying the verdict with a strong recommendation to the merciful consideration of the Court, on the ground of the great laxity which prevails in the state of the law as regards the mustering of cattle. Sentence deferred, there being another charge against the prisoners. The case, which from the position and connections of the prisoners appeared to excite much interest, occupied a considerable period of time, and was not brought to a conclusion until nearly 7 p.m. The Court then adjourned until 10 a.m. this day,