CHARGE OF THEFT

Nelson Evening Mail, Volume LXIV, 2 April 1930, Page 3

CHARGE OF THEFT

ACCUSED FOUND GUILTY RECOMMENDATION TO MERCY The hearing was concluded at the Supreme Court late yesterday afternoon of the charges against Brian Forbes Twiss of on or about 23rd December, 1929. at Nelson, receiving the sum of .U3O from (100. Edgar Schdroski on terms requiring him to pay the same to J. (<. Ingram and Co., and fraudulently converting tho same to his own use, thereby committing theft. The accused was further charged with fraudulently omitting to account, for the •same to J. G. Ingrain and Co., thereby committing theft.

His Honour Mr Just ice Kennedy was on the Bench.

The accused, who was represented "by Mr .1. Kerr, pleaded not guilty to both charges. ■Mr C. R. Toll prosecuted. In further cross-examination the accused saiil ho left the promissory notes and the hire-purchase agreement in the car after Schdroski had taken possession of it. He bad arranged to go through to Picton in a. borrowed car to meet his wife. He did not (ell Ingram be was going. Up admitted that Ire stayed at the Black Horse hotel for some hours with a woman and that both were drinking; also that the woman accompanied him through to Blenheim. He had no recollection of Mr Ingrain telling him that he had to get rid of the car.

At this stage Mr Fell intimated that he desired to examine witness under the rules.

His Honour intimated that he would hoar the application in his rooms. The Court therefore adjourned for five minutes, after which lus Honour intimated that he would grant counsel leave to do so. On resuming, witness admitted that on three previous occasions he had been in the hands of tho police. Edward J. Paid, accountant at Ingrain and Co., gave evidence as to the signing of the hire-purchase agreement. To Mr Fell: It was part of accused's duty to get hire-purchase agreements completed. Philip Ornstein and Archibald C. Sims, salesmen for Ingram and Co., said they had never been instructed to sell the car which was the subject of the charge. This was all the evidence.

APPLICATION REFUSED Mr Kerr submitted that the agreement which was the basis of the proceeding was irregular, because considerable alterations were made to it after the accused had signed it. His Honour: What is your purpose for submitting it at this stage? Counsel: To withdraw the charge on the ground that the agreement is. invalid.

His Honour: I refuse the application

ADDRESSES BY COUNSEL

In addressing the jury Mr Kerr contended that Ingram and Co. had never re-possessed themselves of the car. The accused honestly believed that ho was rightly entitled to the money; and if the jury believed this then 'his client must be found not guilty, as a guilty mind must first be established. He was dealing with a car over which he considered he had rights, and so dealt with it in a manner in which he was entitled to. Counsel proceeded to deal with the evidence, in detail, submitting that the accused's payments for the car were up-to-date, and in that case Ingram had no right to determine the agreement. As to Detective Sinclair's evidence counsel asked if it was any wonder that a young man—the accused was only 25—being , confronted with a serious offence should become staggered, especially when the questions were put by a skilful police officer. In these circumstances counsel asked the jurynot to piace too much reliance on this part of the evidence. Mr Kerr proceeded to deal with the accused's state of mind, submitting that he believed he was entitled to the money, which it was admitted he had received. His client may have acted like a fool, but not as a criminal, and such a charge must he fully proved before a verdict of guilty could he brought in. The accused was entitled to any reasonable doubt. The Crown Prosecutor said Mr Kerr had laid great stress on Mr Ingram's seizure of the car; but he (.Mr Poll) said that nowhere in evidence had Mr Ingram said he had seized the car; but that it must bo sold. But whether the car was seized or not had nothing' to do with the issue, as the car was under hire-purchase to the accused, and therefore could not be sold. The accused was a motor salesman, and must have been aware when he got the money from Schdroski that these would not have been enough to square up Ingram's account. Even if the £3O had been handed over to Ingram, the 'amount would still have been short. Counsel dealt with the subsequent action*; of the accused, asking was it possible that he had an honest belief that he was entitled to the £3O. Counsel asked the jury not to consider accused's previous convictions as to whether lie. was guilty, but only in tho light as to whether he was a truthful witness in the present case.

HIS HONOUR SUMS UP His Honour in summing ,np, after explaining the charges, which he said were alternative, and must be proved beyond all reasonable doubt, went on to deal with the facts of the case. There was some difference in the evidence as to what took place at" the discussion between the accused and Ingrain as to the. disposal of the car; but .his Honour pointed out that at all time the car was the property of Ingram and the accused was never the owner, as he only had it under hire-purchase arrangement. So it might not matter what the precise discussion was that took place ; whether it amounted ■ to a seizure, or not might not affect matters involved in the proceedings. However, il was for the jury lo decide what arrangement bail been come to; anil they could well judge as to whose version to credit. As to the sum of £3O which was paid to accused, his Honour quoted Detective Sinclair's evidence, and commented on the fact that the accused did not deny that he had received the money in terms requiring him to account for it to Ingram and Co. ]L rested on the Crown, however, to prove that the money was obtained fraudulently. Accused bad made no objection when the £ls deposit was paid to ingrain and Co. Regarding the. fact that the promissory notes and the hire purchase agreement bad been left in the car, Ji is Honour asked was ii, likely that a man going about' his duties honestly would have left behind the very documents that be bad gone lo get signed, and have the town and say not a word to his employer, remaining absent, or away, lor about a fortnight*' Or was that circumstance sinister? It was for the jury to consider tho circumstances of the. case. Reverting to Detective Sinclair's evidence, his Honour said ihe jury might consider it. curious ilia! in a man's statement given on oath that he bad the right to I his money, that he said not a wind to I he detective. but . xplaincd that il' he had not -one on Hie "bust" everything would have

been all right. After informing tho jury in wliiil light thoy sliould consider tho accused's previous convictions. liis Honour said the case must bo proved beyond all reasonable doubt before the accused was found guilty. The jury retired at 4.10 p.m. and returned tin' hour- later with a verdict of guilty on tho first charge. A rider was added recommending the accused to mercy in considciation of his youth and Lo the fact that he has a wife and child dependent on him. His Honour in remanding Hie accused in custody for sentence until this afternoon, added Hint he would take into account the jury's recommendation.