DUNEDIN SUPREME COURT.

New Zealander, Volume XXII, Issue 2471, 1 July 1865, Page 3

DUNEDIN SUPREME COURT.

CRIMINAL SESSION. (Before his Honor Mr. Justice Richmond.) mondat, junb is. riobdan's case-a wrong indictment. Mr. James Smitb (with him. Mr. Wilson) moved in arrest of judgment in the case of John Riordan, on the ground that the indictment was bad, from want of certainty in two particulars. The mode of, committing the crime charged was not stated j and the person or persons whom it was alleged that it was meant by the crime to defraud, were not specified or properly named. As to the first point, the indictment was one at common, law for a misdemeanor ; but what it charged was merely an attempt—or, in other words, it imputed no more than a gu.lty intention.' The Judge: It imputes an overt act, certainly, although it does not specify that act, and you may be able to show that it ought to be specified. Mr. Smith apprehended that the indictment to be such that upon proof of the circumstances described in it, the Court should be able to see that the offence was duly made out. -The Judge : I shall not say that f am not to be bound by authority, in matters of criminal pleading; but I was not aware that such an indictment was not sufficient, without specifying an overt act. Mr. Smith: The only indictment at common law on the subject, in the books, was that in Rex v. Schoefield, which was adopted by Starkeyin,his Precedents (2,664). ' t The Judge:' You, would contend that nil, the ancient strictness in criminal pleadings is maintained, except where it is absolutely done away with by.statute. ■■■■•( = Mr. Smith did contend that whatever was toe motive for laying dowu so strict a system, it was in* force still. Murder and manslaughter were the only cases in which it had be»n provided that the mode and means of, committing the offence need' not be set oat. No the fact that it was so provided, mpplied the reason why die Crown had been led into so loose an indictment in this case. The only English Act on the subject whioh he knew of as being in force in the colony, was 1 Vie., c $9. If he was not greatly mistaken, 24 and 25 Vie., c 97, which made the attempt at arson, .by an overt art, a felony j waa not in force here.' The Judge : 9 and 10 Vic, c. 25, is in force in the colony, and that if quite sufficient. If

one might apply one's common-sense to the point, I should sty that the node of the offence was a matter of evilence, -and not of pleading; ! but I am hound by authority, and I most see that, according to the strict principles of criminal pleading, the setting out of the mode of the offence is not necess iry. I confess that I had a doubt on the subject. -Mr. Smith : i.carina v. Rowet (3 Q.B. 18T>), was an authority showing the extreme strictness which, even in a recent case, bad been held necessary with respect to pleading. He would pass to the second point. . The indictment charged that the intent was, in the present cane, "to rau<l a certain insurance company, called we New Zealand Insurance Company." He apprehended that that was not a description of which the law would take cognisance. The Act said, «' with intent to defraud any person," simply. An insurance company was not a " person,'* in the stiict legal seuse. The Judge: I think that there a e indictments showing that the short word " company," is enough in such a case.

Mr, H. Howorth : It is so given in Archbold.

The Judge: All the English Acts as to arson are in force here, except the last—the Consolidation Act—which has not been adopted. Mr. Smith : The onus lay on the Crown, 'o show that the particular formula heretofore observed in naming the persons whom it .was alleged the attempt was to defraud, had been dispensed with by statute. Archbold was no authority as to that. The Judge: But he is some evidence as to the practice: his work is quite a handbook, and is quoted by the English Judges. Ido not think that it is usual, where the attempt is to defraud a company,'to use the word "corporation " instead of " company," which I suppose you say should have been used.

Mr. Smith apprehended that, at least, the indictment should have Said that the attempt was to defraud certain persons associated, trad*, ing, or carrying on business together. The Judge: Which would be wrong, if what was called a company was a corporation. Mr. Smith : The persons c nstituting the .company, if it was not incorporated, should hare been named, or one of them should have been named as representing the others. The Judge: Ton are limited to objections on the face of the indictment lam not now to consider what evidence was given as to the company in this case. Mr. Smith was only submitting how an indictment, in such a case, should be framed. The Court could not take the description given. Either an individual was referred to, or individuals or a body corporate. They could not be looked ou as individuals, for they were nqj named -, nor as a body corporate, for it was not stated that the company was incorporated. The Judge: How do you get over 14 and 15 Vic, c. 100, s. 24 ? Mr. Smith apprehended that the descriptive appellation must be considered ejusdem aenerii. The section said that a person might be described by his office ; but it must be an office of the exigence ot which the Court could take judicial notice. The Judge: What can you comprehend under the principle, gusdem generi • ? Mr. Smith: The prisoner was entitled to the benefit of that strict construction. If it evaporated the meaning of the general words, it was so much in his favor. There was the case of the statute relating to doing injury to " sheep or any other cattle ;" as to which the Judges held that the offences only related to sheep, and would not attempt to say what " other cattle" were included ; and another Act was passed, to include horned cattle as well as sheep. On the authority of that case, he was entitled to ask his Honor to confine the meaning of the words in the section mentioned, to that which preceded them. On the grounds stated, he moved that judgment be arrested, and that the prisoner be discharged. The Crown Prosecutor, after stating that he thought there should have been for a rule to show cause, said it seemed to him that his learned friend had gone aside of what he must have really intended. He was himself inclined to think that the indictment was invalid altogether, but not on the grounds stated; for if the indictment could be for the misdemeanor of attempting to commit a felony, then the forms given in Archbold supported the form adopted here. It was quite clear that where a statute made a misdemeanor at common law a felony, the misdemeanor merged, unless the statute created some new form of procedure or some different mode of punish ment. The law was so laid down in Russell " On Misdemeanor," and the authority quoted was Rex v. Carlyle. Here was a. statute I making the offence of attempting to set fire to a house, or to commit the crime ot arson, a felony. It required that the mode of the attempt should be set oat; but that was only, an additional requirement, not a different mode of procedure, and the punishment was of the same kind. The Judge: What are you contending, now f The Crown Prosecutor:. That the indictment is bad, in toto. The Judge t- I was certainly astonished at i the form of this prosecution—that the felony had mt been charged. t . The Crown Prosecutor was misled by. 24 and > 25 Vic, having this provision in it; he believed . that there was no such provision prior to that statute,' and the indictment was prepared in accordance with that belief. His friend knew.: the real defect in the indictment, but would not allege it, preferring to quash the indictment if possible. He (the Crown Prosecutor) said that the indictment was bad, in toto, that no judgment could be passed upon ft; that no advantage of it could be taken in a future proceeding; and that the prisoner was liable to remain in cus- ; tody and to be tried tor the felony. The Judge : Then you have not a word to say in support of the indictment. The Crown Prosecutor : No, yonr Honor. . Mr. Smith : I apprehend that my friend ia wrong about the prisoner remaining in cuetody. The Crown Prosecutor: It is so laid down in such cases. If a prisoner is in custody, be remains in custody; if he is on bail, he continues on bail.

Mr. Smith hoped that his Honor would be thoroughly satisfied that he had the power to retain the prisoner in custody. The prisoner had been m custody on an indictment which was admitted to be thoroughly bad—that was to say, he was' not charged with any offence at all under it. He was not now charged with any offence ; and, therefore,.he was at liberty. The Judt;e: lam not satisfied of that. I may admit that the prisoner has not been in peril from this indictment, and that it is open to the Crown Prosecutor to present a fr.;sh one; but I shall not at present accede to the arguments addressed to me. I have a duty to per* form, quite indifferent to any contention between private parties. I shall look into the matter; and, meanwhile, the prisoner most be remanded tocnstodj.-Otajo Witwu.

RESIGNATION OF THIS SUPERINTENDENT OFOTAGO. The. subjoined is the text of the reasons which have led to the resignation of hit Honor, u contained in an address to the electors of the Province of Otago, published in the advertising cqlnmns of the Daily Timet . GsNTi-iMisiw,—l bare this daj transmitted, for the. acceptance of his Excellency the Go* vernor. my'resignation of the office of Superintendent of this province. Various circumstances have led me to conclude that my duty to you and to myself called for my resignation. On public grounds, it appeared to be advisablewhile, on the other hand, my private interests demanded it The views of the Provincial Council are much at variance with my own on some matters of vital importance to the country, and especially on the subject of the disposal of the was'e lands. -Indeed, 1 cannot but consider that any law so framed as to carry out in their integrity the resolutions recently passed by. the Provincial Council, will materially check "accessions to our population from other countiies, and will prevent the introduction and investment of capital, at a time whea additional capital and population were neiet; more needed. Holding these views, it will be apparent that, had I remained in office, I could have been at best but an unwilling instrument in carrying "into effect resolutions which, once converted intoUw.wonld^aslbelieve,operate with pernicious consequence to the province. But apart from considerations of a public nature, I fttl Uut I hw abundant reasons for

' the step I have taken. With many others, t hare not been exempt, during the last two years, from seT»re pecuniary losses, raaay of which are traceable to that neglect of a»y private affairs, the natural result in all casat where other duties demand and receive undi» ride! and unremitting attention. To coat bob to hold the office would be equally unjust ta yon and to my-elf. I could uo loader devote myself to the performance of its many dutfaa without making sacrifices which you would not demand Irom anyone; on the other hand, I could not pay that attention to my own affair* which thdv demand, without Reflecting publia interests. I therefore now resign into your hand* the important trust you committed to my keeping, and in doing so I sincerely thank you for the confidence and support you hare girea ma during a period ot more than common difi* culty. 1 have the honor to be, with much gratitude, your most obedient secvan . JoHW HyDB HaBMB. | |Dunedin, June 15, 18(65.