Rutherford Found Guilty of Theft

Manawatu Times, Volume 60, Issue 174, 26 July 1935, Page 8

Rutherford Found Guilty of Theft

Jury Disagrees on False Pretence

Counts

Crown May Desire Anotlier Trial

Verdicts of guilty on the, two charges of theft, of not guilty on one count of false pretences, and of the jury's disagreement on the other live false pretence charges, were returned by the ■jury vesterday at the conclusion of the trial, before' his Honour Mr Justice Blair, of John George Rutherford, a traveller, who had been indicted on sis counts of false pretences and two of theft. It had been alleged against him that, with intent'to defraud, he had obtained from Hughes and Cossar, Ltd. (Auckland), by falsely representing that he had obtained orders for wine and whisky, certain sums of money, and that ho had stolen from them a three-gallon jar of whisky and two cases of assorted wines.

Accused Cross-examined Recalled by Mr J. M. Gordon, accused said he first heard that Mr Hughes was leaving the country the day before he sailed. This was a vital point. Cross-examined by the Crown Prosecutor (Mr H. R. Cooper), Rutherford said that in the case of Mrs Burnett and Messrs Reynolds, W. H. Gaisford and Fraser, he had a personal interview before placing the orders. The others were done by telephone. He had certainly forwarded the order for Mr Snell under the wrong initials, but at the time did not know ho was making a mistake. Ho had never done, business with anyone else of that name, and thought“W.Snell, butcher,” was sufficient designation. Accused was examined at length regarding the approaches he made to Mr W, H. Gaisford.

Anticipated An Order The latter did not order champagne •from him, but he telegraphed to Hughes and Cossar, Ltd., to substitute champagne for still wine in tho consignment to Gaisford. This he did anticipating an order for champagne would later be placed, as the wedding of Miss Gaisford was approaching at the time of tho conversation. Mr Gaisford was not correct in denying that he consulted accused as to varieties of wines used by Mr H. R. Gaisford on a similar occasion. “I was in the position of advising clients as to the wines available and suitable for weddings, ’ ’ declared Rutherford. He considered an order had been placed with him. It was not just a request to reserve the quantity.

Despite Mrs Burnett's denials in evidence that an order was given, he had interpreted his conversations with her to mean that an order was given, said Rutherford. From Mr Fraser likewise he received a definite order, although it was deferred. He later received advice from his principals that Fraser and Gaisford had repudiated liability for goods consigned to them. But he did not remember having received this advieo prior to going to the Takapau station and uplifting the whisky there which Mr Fraser would not accept. It was his practice to visit the stations seeing if consigned goods had been unclaimed.

Use of Samples When Hughes and Cossar wrote demanding to know what had become of the whisky sent to Takapau, he replied by advising Mr Percy Hughes (who has since left New Zealand) that he had lifted the whisky himself and would be using it—about £l2 worth — for samples. He had always been willing to pay for whisky used as samples, even that consumed, Use of this threegallon keg as samples had not produced any definite order. Mr Cooper asked accused to name anybody, “apart from John G. Rutherford and his friends, " who had been privileged to ’ sample from the threegallons.

Mr Gordon, counsel, was named as one. Ho got a full bottle.

Ilis Honour asked for more names. Three gallons, it was agreed would produce 13 bottles. If all' this was distributed as samples, a minimum of 18 peoplo had received samples. Could accused name a dozen?

Rutherford, succeeded in naming five individuals. They included Major J. T. Bosworth, Major Boys and Mr D. Fraser (Wanganui).

“Did these five receive three bottles each?" queried his Honour. “Not at all," replied accused. “In fact, only one of them got a full bottle; the others were given only a ‘good nip,’ which was often sufficient for sampling purposes." His Honour: How many "good nips" to a bottle? —It depends on the size, but usually about 14. From none of the five people named, or even from the many others whose names he could remember, did he receive an order—not even a "reserved order.” But all of the three gallons was used for samples. Tore Correspondence in Disgust Asked by Mr Gordon why he could not show his correspondence with his principals, Rutherford explained that ho became so disgusted with the manner adopted by Hughes and Cossar toward him that ho tore all the letters up and sent their wine and whisky back to them.

After a few more questions by his Honour, accused left the box. This concluded the case for the defence and counsel proceeded to address the jury. It would be difficult to attribute fraudulent intent to Rutherford, submitted Mr Gordon. The worse that could bo said of him was that he was too optimistic and too persistent a salesman. Charges against accused were of two

kinds, said his Honour—a series alleging fraud and two alleging theft. As to the charge referring to the order alleged to have been obtained from W. H. Gaisford, the Crown case admitted that the commission was not actually forwarded to accused. Obviously then in this instance ho could not be convicted of receiving money by a false pretence, but the jury might find that an attempt to do so had been made. With regard- to the other chargcs if the evidence of the accountant of Hughes and Cossar were accepted, then it would be established that the money had been forwarded. Failing that, the counts might lapse to ones of attempted obtaining of money by fraud.

Resuming his summing up after lunch, his Honour said that if the jury was satisfied that in each case the appropriate commission had not been paid over to accused, then attempt only could be proven and not fraudulent receipt. The three elements comprising fraudulent obtaining of moneys were: a fraudulent practice, a guilty intent, and action on the strength of the fraud. Hughes and Cossar claimed that they had acted on the alleged bogus orders by forwarding sums of money to accused in five instances out of six. If Rutherford, in the minds of the jury, had known that the orders had not been received by him, they would bo satisfied as to fraudulent intent. Had there been only one instance, it might readily have been believed that accused genuinely thought he had been given an order. But a man could not make a habit of misunderstanding, and when five or six witnesses—whose veracity was not challenged—all denied ati order to have been given, the matter took a different conclusion. Even so, however, it would be conceivable that accused thought he had been given an order. But it would be absurd to suppose an order was given merely because a person agreed to have wine or whisky put by—"reserved," in accused's term—for possible purchase in three months' time. If a man had such a singularly sanguine temperament that when anyone mentioned wine or whisky in his presence, ho took that for an ‘order for future purchase, then he had an unusually formed brain I to be able to draw such deductions. His would be no ordinary intellect. The jury must place its own interpretation on the facts arrayed.

Counts of Theft. Discussing tlio cnarges of stealing the rejected wino in one case anu wiusriy in another, his Honour said it was icnown tliat accused nad used the tliree gallons oi wiiisity and one caso or wine. Was he entitled to do so? If Rutnerford honestly thougnt, even tnougn mistaKenly, that he was entitled to appropriate the goods for samples, the offence mignt not be coloured as theft. But the Crown suggested this was a belated story, and tnat no mention of samples was made until accused entered the Courtroom. Eighteen bottles, each giving 14 "nips,” would allow of accused distributing 252 samples, each costing about one shilling. It was rather generous sampling. Even allowing for a full bottle being given to one person, and the samples to the few peoplo named by accused, there remained about 230 nips of whisky unaccounted for. The Crown asked the jury to believe that this liquor, with ono case of wine, had been appropriated by Rutherford. The jury retired at seven minutes to three, returning at 7.15 p.m. with a verdict as stated. The charge of false pretences which was thrown out was the one concerning which the Judge had separately directed the jury. The amount involved was £2 Os Bd.

Mr. Cooper formally asked permission for a new trial on the five charges about which no agreement had beer reached. It would be necessary for him, he said, to consult the Solicitor-General as to whether a new prosecution must bo proceeded with. A date for ths new trial will then be fixed. Rutherford was remanded for sentence.