SUPREME COURT. Monday 2nd June.

New Zealander, Volume 1, Issue 1, 7 June 1845, Page 1

SUPREME COURT. Monday 2nd June.

Ihi Supreme! Cotirt held , its Quarterly Session on this day, and much interest was excited, in'anticipation of the proceedings of the Local, Government in> the case of Mr. Waitford. After the Grand Jury were sworn, His Honor the Chief Justice addressed-them, as follows, I find in the Calendar only 3 Criminal Charges. With respect to 'two of them, tfi^ oue ior stealing, and the other for receiving stolen goods, you will need no guidance from me. Hut the third chnrgeis.of a less

usual kind, and is one-with which many of you probablj may not have had to' deal with on any former occasion, 'IJie prisoners in this case have been committed M rioting. How the indictment may be framed, I know not, but a few remarks -for flic purpose of shewing the nature of the offence of rioting, as denned by the law of England, may be serviceable. There j ias een SO me degree of discrepancy, amongst jthe highest authorities of the Criminal Law on this point ;, but the definition which I »ra about to give nSay sa'f6ly 1)6 taken as tire settled rule now. To constitute a riot in the legal sense of the word, fjj is necessary that, first, S or >more persons shall assemble', "or being assembled, shall continue together fpr some common purpose ; second/thp purpose may be the execution of s<jme unlawful and violent act, or even of a lawful act, if persons so assembled, proceed to carry it' out in a vidlent audtumuitubuK manner, so as to create terror and alarm, amongst the. Queen's' subjects ; third, the common purpose must be of a private, nature, that Is to say, must relate 'to 'disputes and» interests affecting particular persons only, for if a riotous assembly proceed to redress public grievnnces, their acts may amount to treasoa V fourth, antl, lastly, the common design must be actually proceeded upon and executed, but at least, in part executed. These, Gentlemen, are the essentials of the offence of rioting, you will bear in mind in considering the evidence, in the caie I have referred to. ' I do not find it needful to detain you any longer from your duties. The Grand Jury then retired and after some considerable time had elapsed, came into Court and through their foreman, \V. F. Porter, Esq., declared that ihe bill against .Charles Berry Waitford, for having in hi* possession stolen property was igftored. The Grand Jury again retired, and after finding bills against James Styles for larceny, and against the four privates of the 96th Regiment, for rioting. His Honor discharged them, with the tkuiks of the Court for their attendance. ' James Styles was indicted for s-te&ling four half crowns, and four shillings in coin from John Maloriy, butcher. The case was endeavoured to be proved by two native witnessess, who were in the shop of the prosecutor when the prisoner entered, and who had seen the money on a table ; but their evidence, and that of the prosecutor .himself, were so at variance with their depositions before the Magistrate, that Mr. Pott, who conducted the prosecution, de* clared in addressing the Jury, that it could uol be expected that their verdict should be any other thati acquittal. The prisoner was instantly acquitted and discharged. James Smith, William., Gutteridge, John Ford and Benjamin Know les, ftll privates in Jf.M. 96th Regt., were indicted'for noting with the felonious intent trf demolishing the house of Henderson, of the Commercial Inn, Shortland Crescent, on Thursday evening, the 29th of May., Mi». Pott appeared for the prosecution, and stated the case to the Jury,as it appeared, by the evidence, and observed he should .tonfine himself simply to a detail of the evidence that would be laid before them, reserving any further observations to a later period of the proceedings Thomas Henderson stated that he returned home ou the evening of the 29th May-, and found a great crowd assembled. before his house, therefore he entered at the back of the premise,— he fouud that soldiers were endeavouring to break open the shutters, which were closed. The soldiers did effect an entrance by breakiug tUe shutters by, force. Identified the prisoners Ford and Gutterid&er They were I exciting the others. J Mr. Hartley for the prisoners cross-examined the witness. The uight was very dark <*-/fHe lamp before the house was broken.— The soldiers had bayonets and sticks.-4-The shutters were sliduig^tliutters,. --•The soldiers were urged on by the exclamations of" Go it 96," "Knock the home dburnSs-. There might be ten or twelve soldiers. . John Marshall, carpenter, was pissing the Commercial Inn, and observed two* or three soldiers within the house, striking a man, and. heard the men declare they would tear the house down, identified Gutteridge. About half past seven, saw a »ar»y of soldiers come down Shortland Crescent, pull down the shutters, and enter through the windows. Colonel Hul me ordered them off. to the bar- ,' racks. Lieut. Barclay was there also. William Miller, blacksmith, saw the soidiers breaking in the windows. Identified Guttcridge, sword to him oaaccount of hjs having oil a great coat. Jeremiah Lane, seaman, identified tho prisoner iKnowles, but on his cross examination, it appeared that he was locked up that night for being drunk. David Snbdgrass, baker, saw the tumult before 'the Commercial Inn, and soldiers endeavouring to "pull' down- the shutters. . Identified the prisoner^ 'Ford and Gutt ridge, as being-, most active hi the riot. ' William- Herne, identified \the prisoners Ford, Smith, and, Guttridge, and gave evidence to the damage done by them. On his cross-exatrtinatiou, he declined to answer the questipii,**Whethe)t he had ever been transported ? ' ';i k Colonel Hulme stated that Ue went down to the Commercial Inn, in couscqueuce of hearing of the riot. Found the prisoners Ford and Guttridge there, and ordered them with others to return to the barracks with, him, whidi they did I .' Two of the soldiers had great-coats on. He spoke Of the good'character of all. the men, who had been very much slandered and insulted .vince the affair at Kororarika. Indeed both officers .and men had been subjected to much insult whenever they appeared iv the town,,, and the men had certainly received great provocation. Mr. Bartley appeared' for the defence, and stated that he objected to the indictment. There was a flaw iv it> inasmuch as there was no pioof of ownership of the premises, of which the prisoner's had been iiidicled; for attempting ieloniuusly. to destroy.' He submitted to his Honor, the Judge, that there must be evidedce beyond the mere statement of Mr. Henderson, that he was the owner, for the lu»iise was in the occupation of Mr. Macfarlane. > The learned "Judge asked Mr. B.artley, for a precedeut or authority j it he could adduce one, he would entertain the objection,— •" if , not, -^- he. overruled it. Mr. Bartley, then made another 'objection, that— 1 neither the year of our Lord, nor the year of. the reign of the Queciij-appeared in the indictment. His Honor the Jud^e obscivcd that lie had full

power to amend any indfctme'm. on such particulars therefore Mr. Bartley's objection could easily he remedied if it wa* wished. Mr. Bart Ley then called, John Harrington, Sergeant of the 9tflh Rcgt.-, who iwo'r^ 'that' Smith the prisoner was drank on his bed in the barracks, fhe iVAole of 'the afternoon of the 29t)h, flutil eight in fclra evening. George Dobie, Henry Pearson, and i&eoVge Hddson, all private* of the J)6th ftegt., gave evidence to the same elfcct, as Vc!garde4 this prisoner Smith. ,, x Thomas Smith, privat* of the. 96th : Reg;., swore •th&t'fhe pruoner KrfovVles, returned to the bah'acks, at 6 o'clock on TJiursdayyAVentto his bed and never , left it on that evening again., Mr. Pott then addressed iTi'e Jury k and oftserved that after the very clear evidence sufomittedL to them, it r^was unnecessary to accompany it with m«fly observations. indictment had lieeh laid under u recent Special' Act t>f Parliament,. tc*..prevettt tke 'demolition of property,— such as factories, honses, &c. The evidene'e had most clearly proVed Hhat the prisoners at the bar were accessaries to the outrage. The* defence attempted was the most common of.aUi that were resorted to in sttch cases, an'Oihleaveur -to' provtf an alibi with respect to two of the piisonels. . KnoWies and Smith. Ihe 'only witnesses- brought lorw'ard w*ere soldiets of live same Regiment; and iit ' might b« expected that they would stretch their consciences to ihe utmost in behalf of their comrades,' The Colonel of. the Re«tment had 1 identified two oU them, Ford and Guttend«c He therefore should leave the case 'entirely with the Jury, being WcH,< assured that tWey would^returrt sbch a VenlicYias, would prevent" repetition of 'such outrage, and be a warning to others not to beak the law with impunity, , Mr. frarttey m a'ddres,iug the Jury foi-flvtf'priso-ners begaft by observing that he should not tottpagn s witnesses on account of their Jeelings or interests, % ,as his ieatncrii friend had done, but appeal to the > Jury on the- real evidence of the caae.^ It was quite clear that two of the prisoners werCentttledto. Itheftv acqirittall Against Knowles there was no eVklcncc - except of" the seaman Lane, and it might be tto«bt*A .from bis being, locked up the same eveuing,far being"., lintoxicated, whethter tie was correct fti'-tii&fclßMtt&r of him* Tbe evidettfce-agaia&t Uho pfcisonef&mHfcvs was rather stronger certainly, , but still very slfgfcfc. The only- witness who positively swore to- h\in\ r Y&& Williain..Herue,and -the' Jury vttfuld pennctebfrn Mas, disinclination tp answer ,a-certai«qaestion r he;w6u i J» : il t not suy|that the evidence ok such a man* Was- swfcH, worthy ofv or6denee> but -it cePtaiwiy ougtife.tfr^iM^ received! with great catitio^ r »speciaUy : iuidec sto:&m grave charge as' that for which the prisoners- at? $k& bar wer« nctaignßd, which- wasnotbingfcss-tfcttn^H capital felony. He conceived thatahar isi«ii«i*W&«*»^ had lioJt.Jteen proved,— under aniother for. cfWojiasuAu riot, tlwix might have/ been s«l«e chaiupe* . Ag^iw*-. the two prisoners Ford And Gutteridge .there -Vertaiatyy teas eviiteflceof their presence at the outrage. . Kffc>, Mr. Bartley-j was. not. the edvocate of. tuinsjlljOW'tw*' - rage, but he did think that en, this occasion .the pjr*-. sonets had lrad gieat prpvacatioii.i and he catled t!«x, theJuuy to .dibmiss, iron* tkeir, iftiiida atiy pßert»io\ks\ prejudice^ and to. give the prisou»rs the beaetU of .»»y .• doubt as to the full/ accomplishment of the ©6!fca£e • of which thoy were indicted,. The leaimedu s»6g6^ would explain to them the law, and wJiut^wwil&i constitute the felonious act for which the A&t was-, intended, under, which, thte. indictment' had. btufa framed. Dreadful .as, would, be the piuushineiittftfi the pfisohers if guilty, so &reat, he t<ru»led would be the awsrey and cautkoißofi tht J^ry»v The Chief Justice after reading to, tbAJury tv p«S the indictment, said •^Yotrseeihcn Gentlemen, thattliicse.pnsonArs Hfe not indicted for rioting merely, but for liotonsly beginning to demolish adwelling houae. The loffencJe *f,' rioting i& included in the cliacge i» the iinlictment' (The Chief Justice then entered into an explanation .of the legal constructienof'tha word * rioting 'tes.befoi«, to the Grand JUry..) 1 now come to. the .second pajrt *f. the charge against the prisdners, viz.— That they beii^ riotously assembled, feloniowly began to; demoliahfa, dwelling house.— The law of course punishes with equal heverity, the felonious act of demolition wUeth*r it was actually completed or merely began. But.yOrt Mil ntoti'ce the proper meaning Of the word 'beginning/ -it- must be strictly a.beginning ; there must be. strictly, v an intention to .complete the act so began. It is not a beginning to demolish-, within tlifr statute, unless the ulfioiate object, waj? to demolislUhe house, and unless it tlfliy had carried their intentions into full effect, they would have demolished it. 1 will quote, the wwdsOf Mr. Justice Pjwk, on.a case tried before liitti, wwter thijf statute, as they are very- applicable to the casd nov before the Cpurt,. 'If the prisoners meant to, stofa were they die}, (i.e. breaking .windows and doors),and to do woahore; they arcnot^uilty. If they intended When . they broke the windows, ,&c.,to go further, anddestroy the hduse, they ai c guilty, if t hey had the full menus - ■of going further, and ware w)t mte*rfcpted,..but-lwt oft of their own accord, it.is evidence, from which the jury may infer that they meant the work of demotion to stop where it did.' If now you .are satisfied that »ll,tlie •elements of' the crime ,'cllarged, ar^-made out by j)tuur» you will convict the prisoners, or.suclvof the,m as are identified, for you see that' the evidentHJ of.identinj-'Rtionr is strong and unanswered,— against dthers,less strong and'contradtcted. If you believe them to havehnd no se - rious intention to demolish tlie hodse,4f yo» believe this to have been merely a riot and nothing mpre^you cannot convict them on this indictment, for the*phfirge here made against the prisoners is for the felony- v It tsquite'true that threats' were made by some persons m Uie afternoon of destroyihg the liousc^ but tbos£ perlsous are not-shown -to be the prisoners, at aH event'; sttpposetliepriboners proved to have bee* connected with those persousr-there was quite a.sulli«ient interval of time foi the iormation of another piarpose. Your best guide, as to the intent will be the nature of the acts proved to have been committee. The Chief Justice wemYoir to remark on the' recentness of the transaction uhder inquiry, that though it be well that punishnteut should speedily follow guilt, yet, so long as justice is to be .administered by human beings, sonic , interval of time will-always be serviceable tor attaining to the coolness and calmndsa of mind, needed for the doing of Justice. It will be well for every wan .concerned in the administration of Justice to be lemmdedand t» remind himself. of- this danger." The Jury fonncl Ford and Gutt.r'.dge'gniUy, and'llU Honor the fol'owing mowing sentenced ihciu both ter 1 . r8 months impns'jnment with hard labor. Sm th and Knowles were acquittal,'