ALLEGED THEFT.

Manawatu Herald, Volume LVII, Issue 4811, 16 July 1937, Page 2

ALLEGED THEFT.

CASE DISMISSED. In the local Magistrate’s Court yesterday before Mr J. L. Stout, S.M., C. P.. G. Westwood (Mr M. B. Bergin) was charged that on June Gth, 1937, at Foxton, lie did ‘steal a hardwood spar, valued at £2O, the property of Captain T. C. Thomson, master and owner of the m.v. Huanui. Accused pleaded not gqilty and elected to be dealt with summarily. Constable R. Owen, in outlining the case, said that Captain Thomson had been in the habit of storing a large hardwood spar on the Foxton wharf which he used from time to time in connection with the discharge of heavy loads from the m.v. Huanui. He left port on May 31st for the South Island antf as was his custom, left the spar on the wharf. On his return on June 9th, however, lie discovered that the. derrick was missing and he reported the matter to the police. Subsequently the spar was located by Constable Miller lying alongside a tramline at defendant’s fiaxinill. AA r hen interviewed, defendant explained that he had interviewed Mr G. A’. Fraser, agent for Captain Thomson, and liquidator for the Mana.wa.tu River Service Co. on Sunday, June 6th, in connection with the loan of a punt and gear to l’aise one of defendant’s punts which was sunk up river. During the conversation, however, alleged Constable Owen, no mention was made of the spar and shortly after leaving Mr Fraser, defendant got his lorry, went to the wharf and amoved ’ the spar. Defendant’s launch and another punt had been sunk at the jetty of his mill and the spar had been used to raise the launch. It was customary to obtain permission from the secretary of the Foxton Harbour Board before removing • anything from’the wharf but this had not been done.

Captain T. C. Thomson, in. evidence, said that he was the owner and master of the n\.v. Huanui and the spar Was his property. It was 36ft. long and lOin. in diameter and valued at £2O. AVhen he left Foxton on May 31st he left the spar on the wharf and on his return on June 9fch he found it was missing. He paid rent to the Foxton Harbour Board to enable him to store gear on the wharf. No one had authority to remove the spar and' he had never lent it at any time. To Mr Bergin witness said that the spar had been about the wharf for the past two years. It was usually kept at the opposite end of the wharf to that used by the Manawatu River Service boats. There was nqthing on the spar to indicate its ownership. Mr Fraser was his local agent and if he gave any-? one authority to use the spar witness would have approved. Garnet V. Fraser, accountant, of Foxton, said that, lie was. agent for Captain Thomson in Foxton and he was also liquidator for the Maliawatu River Service Co. He had never given anyone authority to' use the spar. On Sunday, June 6th, defendant had interviewed him at a little after noon and asked him if Mr Bergin had ’phoned him. Witness replied that he had not and at defendant’s request lie had rung Mr Bergin up and from what he said Westxvood wanted to go on with an arrangement previously discussed to lift a sunken punt up river. The* object of his call that day was to see if witness would give him permission to use another punt and gear belonging to the Manawatu River Service Co. to raise the sunken punt. Witness said he would do so provided defendant paid him £129 4/9 freight due to the Manawatu River Service ' Co. Westwood agreed to this and asked if he could have the punt that day to load his gear on to ready for an up-river trip next day. Witness granted him permission to do th,is and arranged to meet either defendant or his agent at the wharf ■ next day to pick out the River Service gear which defendant would require for the job. When witness reached the wharf next morning he saw the punt still moored there, together with defendant’s launch. Mr Joseph came along and together they sorted out the gear that Westwood required. AAhtness, however, would not allow Joseph to take the gear away'until an agreement had been signed by Westwood to pay the freight due and to return all the gear selected. A list of the gear was prepared and given to Joseph to take to Westwood in order that he might obtain the agreement and cheque but he did not return. To Constable Owen: No mention was made of the spar at any time, nor was it included in the agreement. AA’itness did not know who, had taken the spar away. He saw the marks of lorry wheels on the wharf and thought some.one else might have taken it. He did not suspect that it might be in Westwood’s possession. He knew that Westwood was anxious to raise a punt loaded with rails which was sunk at Rose’s bank, about six or eight miles up the river but defendant had made no mention to witness of his own punt and launch, being sunk at the jetty. Joseph did not mention the spar. He was acting as AVestwood’s agent and witness handed him the agreement for A\ r estwood to sign but witness had not received it back nor did he get the cheque then. This had been paid since proceedings had been taken, however. The spar had nothing to do ‘with the Manawatu River Service Co. which did not own any similar spars. Mr Bergin: On the Sunday you rang me up, don’t you remember me saving that AA’estwood’s launch and punt were sunk at his wharf"? —Yes

you said that he had mentioned ifc_* in passing. That was' before the discussion? —Yes. Westwood made no mention of it, however. For some time there had been' a question of accounts between the River Service Co. and AVestwood hadn’t there?—Yes. Westwood lodged a claim for £9O for sunken rails and you claimed £l2O freight from AVestwood?— Yes. And a conference was held, in your office on March 15th between, yourself and Mi- Gordon, representing the River Service Co. and myself and AVestwood? —Yes. \ And I suggested that Westwood paid you in full and that you surrender to him the propex’ty and sunken punt at Rose’s bank? —:Yes. (AVestwood asked for a few days to ascertain the possibilities of raising the punt?-—Yes. And it was then agreed that the Manawatu River Service Co. ,sho- . uld lend Westwood a punt and such other gear as it had to enable him to lift the sunken punt, Westwood undertaking to be responsible for loss or damage to such gear?—Yes. You also knew that it was only a question between Westwood*and his merchants concerning the outstanding freights?—Yes. I handed you a letter confirming the agreement reached on-April 20. —That is so. (Letter produced). You deal with flaxmillers in freight contracts?—Yes. And you know that they all have to get an advance from the merchants to pay royalties and freights?—Yes. Then if it was true that Westwood’s merchants had not advanced him the money there would be a delay in settlement ?—Yes. / Early this month I gave you Westwood’s cheque.—Yes, follow-y ’ ing a registered letter. From time to time the Manawatu River Service has had punts sunk in the river? —Yes. And you are aware how they are raised? —Usually by floating an empty punt alongside and attaching wire hawsers to the sunken one,-or by using two punts and a pole. Fuller was employed by the Manawatu River Service Co. wasn’t he?—Yes. For about 12 months. He was a good worker and reliable? —Yes. If Fuller told Westwood that the spar belonged to the River Service Co. don’t you think that Westwood would believe him?—-If Fuller was competent to give an opinion I suppose I would accept it but it is hard to say. You told Westwood that he could have the punt on June 6th?—Yes. And the other gear later when he , banded over the cheque and signed an agreement?—Yes. v Constable Owen: The spar was not included in the agreement?—No it was never mentioned. Besides it did not belong to the River Service Co. and had never been used by it. Mr Bergin: We have evidence to show that it has been. Witness:. The , spar has neVer been off the wharf unless used by the m.v. Huanui. I ean swear to that, • \A r . li. Miller, police constable, of Foxton, said that Captain Thomson reported the disappearance of the spar to him on June 10th. He had no idea where it could be and be- - lieved.it to have been stolen. Witness commenced investigations; and received information that Westwood’s lorry had been seen to cart the spar awav ! from . the wharf. Witness visited defendant’s mill, and found the spar lying alongside a tram track between the mjll and the jetty. AVitness then interviewed Westwood who said that he had taken the spar off the wharf at J p.m. on June 6th. He added that he had interviewed Mr Fraser at 12o’clock. He had taken the spar and used it to raise his launch which was sunk. He gave a statement which witness read. In it defendant stated that he had believed the spar to belong to the Manawatu River Service Co. and that he bad intended to use it up the river to raise the sunken punt as he had ’ arranged with Mi- Fraser to use the Manawatu River Service gear - for this purpose. All his assistants had been under the. impression that the spar belonged to the Manawatu River Service Co. He was prepared to make good any damage done or to purchase the spar outright. ; To Constable Owen: The spar was returned to the wharf a week [ after inquiries had been commenced. To Mr Bergin: Witness had • no difficulty in obtaining a statement from defendant. - - Did he tell you he had authority to use the spar? —No. Did lie say that I was acting for him? —No. Did he ask you to ring me up? — No. He could have done so, though. No attempt was made to conceal the spar?—No. This concluded the case for. the ‘prosecution and Mr : Bergin held that there was nothing whatever to show any guilt in Westwood’s actions. , The S.M.: Perhaps not, but he has lio right to take anything that belongs to another person. He had no right to touch the spar even if he thought it belonged to the River Service Co. until he had paid over the cheque. 1 ■ Mr Bergin: He obtained permission to use the punt that day. The S.M.: But he had no right to touch the spar and it does not mat- - ter whether, he did so openly or not. . * Mr Bergin: Fuller, who had been in the employ of the Manawatu River Service Co. for eighteen months told him that the spar belonged to the company. The S.M. Even supposing it did, Westwood had no right to until he had paid, the cheque over.

Mr Bergin: Westwood went to the wharf to get the punt and while there Joseph suggested using the spar. Westwood asked whose it was and everyone assured him that it belonged to the River Service Co. , The S.M. He had no right to use it even so without permission. He could have returned it anyhow. 'Mr Bergin: He left it at the mill believing that it belonged to the River Service Cb. and with the intention of using it to raise the punt up river. ’ The S.M. He had no right under the' arrangement. Mr Bergin: He had no intention of depriving the owner permanently of the spar. He is not a thief and had no intention of stealing. The S.M. Probably he didn’t. Mr Bergin: It is not likely that a juan would di'ive oii to the wharf in the presence of fifteen or sixteen people and load a spar on to his lorry with the assistance of four or five other men and then drive down the main thoroughfare with it. Wiestyvood was faced with extraordinary difficulties. His launch and punt were sunk which meant that he was deprived of his means of livelihood. It could be proved from the arrangement Avith Mr Fraser that it had been agreed to lend him a punt and gear and iMr Fraser was holding a letter dated April in which Westwood had undertaken to be responsible for any damage or loss of gear. Although it ha,d been since proved that the spar belonged to Capt. Thomson, Westwood had acted under the impression that it belonged to the River Service Co. He had acted innocently.

Charles Percival Garnet Westwood, in evidence, said he Avas a flaxmiller residing locally. He had arranged with Mr Fraser to borrow a punt and gear. He agreed to either go to the wharf himself or send Joseph to check over the gear. On the Sunday afternoon, however, / Avhen they went down to get the punt previously arranged for they realised that they had no means of shifting the punt as the launch Avas sunk. Joseph suggested using the pole to raise the launch and Fuller, who had been in the employ of the River Service Co. said that it belonged to the company and he had seen it used up river by Mr Ross. Witness had also seen Mr Ross using the spar. About twenty people Avere on the wharf at the time and Mr E. Silvester assisted them to load the spar on to the lorry. They then drove up past the Post Office and along Main St. to the mill Avbere the spar Avas used to raise the launch. Witness did not return the spar as he thought it belonged to the River Service Co. and he intended to use it up river. To this end he Avent out to a plantation and cut a pole to match it when he was unable to borrow one from the Power Board. The delay in paying the cheque was due to a misunderstanding about the freight payments with the merchants. Witness actually paid his oAvn cheque over on the Friday and the merchants’ cheque did not arrive until the Monday. Witness had no intention of hiding anything from Mr Fraser.

Constable Owen: Why didn’t you tell Mi- Fraser about the spar Avhen you saAV hint on the Monday? /Witness: Joseph Avent doAvn to the wharf for me.

The S.M.: Why didn’t Joseph tell him you had taken the spar. If he had done that the whole matter Avould have been cleared up. Witness: That is so.

Constable OAven: Who were all these people on the wharf on the Sunday? Were they local people? —Two were: Groom and Silvester. Wouldn’t it have suited just as well for you to have taken, the spar on the Monday?—No. There Avas a “fresh” in the river and a big blow up country. The launch Avas sunk and the sooner it was up the better. Mr. Bergin: You didn’t anticipate any trouble about the spar prior to Constable Miller intervieAving you? —No.

Do you remember when you next saw Mr Fraser after June 6th? — No. It would be a long time after. Witness added Joseph had gone to cheek the geaF over on the Monday as he had a knowledge of what was wanted. He returned with a list of the gear.

Constable Owen: Did you tell Joseph to tell Mr Fraser that you had the spar? —No. Joseph had suggested taking the spar and I left everything to him.

The S.M. said that he did not want to hear any further evidence. He would give defendant the benefit of the doubt. It was quite clear that he had used the spar without authority but there was nothing to show that he intended to thieve it. Defendant: I am prepared to pay for the loan of it. , The S.M.: What you ought to pay is the witness expenses. Perhaps this case will illustrate the danger of borrowing anything without first obtaining permission.

The S.M. accordingly dismissed the case, defendant volunteering to pay expenses.