MAGISTRATE'S COURT.—Friday.

New Zealand Herald, Volume I, Issue 307, 5 November 1864, Page 5

MAGISTRATE'S COURT.—Friday.

(Eefore Dr. O'Neill .1. I\, und GoDrge Graham, K»q., .1.P.; The Resident Magistrate being again absent from indisposition. DRUNKARDS. Bit-hard Phillips charged with the above offence was treated in the usnal manner, and Sarah Cooper for her third offence roceived seven days' additional punishment. BREACH OF TIIE CITY HOARD ACT, 18G3. AA m. Walters wasocharged with a breach of this Ordinance. 'J his case was an adjourned case. Tlie Cleric appeared on behalf of tho Board, and r. J. B. Russell for the accused. • '•Mr. Russell said there was a great deal of unnecessary trouble caused in this case, it was agreed he underestood, previously in the Court, that his client would plead guilty to tlio charge upon the clear understanding that the case would not be pressed, and that only a nominal fine would be inflicted upon tho conditions as formerly agreed upon, he would acknowledge the ofi'ence on behalf of Mr. Walters. The Clerk said that tho nuisance complained of had been removed, and that the City Board were quite satisfied with this. The liencli ordered Mr. Waliors to pay line of 10s. and costs. KMIS FZ/T,KM KNT OF NAVAL AND MILITARY STOBES. James Williamson was again brought up on remand charged with having embezzled certain beds or mattresses, theproi crty of her Ma jesty the Queen. Mr. Merriman appeared for the prosecutor, and Mr. Wynn and Mr. Beveridge for the prisoner. AVilliam O. Cliislett; sworn, deposed: I am De-puty-Assistant (ommissary General, and am now stationed ill Auckland. In my capacity I had charge of certain naval and military stores, a part of wli ch were entrusted to tho prisoner, consisting of transport bedding, such as pillows, beds, hammocks, cots, Indian blankets, and various other articles. I entrusted Sergeant J. B. Hampshire with the charge of the store for me. Some time ago I gave orders to Sergeant Hampshire to take stock of the contents of the store. f lhis was during the last week in September (at this stage all witnesses were ordered out of Court.) A report was made to me bv Sergeant Hampshire about tho sth or Gtli October of a deficiency in the store. I afterwards caused the whole of file articles to be counted over asjain. I subsequently saw some ol the bedding in the guard room, which bedding is a portion of her Majesty's naval and military stores, and is the same as now produced in Court. I ideniifv tho articles by tho military numbers. I have inspected the goods and can swear positively to the following articles belonging to the Imperial Government, viz., ID beds, 6 blankets, 15 hammocks, and 1 pillow. All these are marked with the Government brand. I cannot of my own knowledge say that the articles in question were entrusted to the prisoner. I hare however paid him for tho washing of them according to contract made between the prisoner and the Government. By Mr. Wynn : I believe the prisoner's contract is citeuded and will not expire until March next. I cannot swear that I have paid for tho washing of these very articles now produced. James Barlow Hampshire: I am Quarter-master Sergeant to the Commissariat Staff Corps, and held that oflice in September last. ' 'ortain beds and bedding in the month : were dijliveiol to the prisoner for cleaning and mending. j identify the prisoner's signature to the total of the book now produced, as having received tlib different articles at the end of each quarter. TliS tofal for the 30th Septmber is 1197 beds, 850 pillows, 181-1 hammocks, 1757 blankets, and 20 cots. The entries were first made in pencil, and at the end of the quarter altered into ink. The pencil initials were made by the prisoner. I can swear that the whole of the initials and signatures, including the pencil marks, were signed by the prisoner. It was my duty in the ordinary course of business to keep the accounts of tho issues and re-delivery of the stores. The prisoner signed the total as having received of the various articles. In consequence of instructions from Mr. caused stock to be taken of the goods in the store. Prior to this I had given instructions to the prisoner to bring m everything lie had, as we were going to hand the things over lo the Naval authorities. Sergeant Palmer took stock of the stores the first time. He was then ordered to take stock a second time, in order to bo correct. Sergeant Jifkins was then instructed to take stock, a third time. Afterwards Sergeant Jifkins went through the store tho fourth time, and found a deficiency of what ought t} be in the store. J cannot state exactly tho deficiency. There wero 1G beds, !)3 hammocks, about 40pillows, 2cots, 12 pillow-cases, 1 sheets,and 11 wrappers missing. In consequence of information I received! went to prisoner's house, aid saw things lying about beloi g'ng to the Imperial Government. 1 sent Sergeant, Palmer to give notice to Mr. Chislett,and suh.•■eqiieiilh' enino to tho prisoner's house with a search warrant, when we found thore 2 wrappers, (j bed covers, 30 blankets, 2 pillow covers, 10 beds, 2 pillows, 1 cot, -lo hammocks, and a bag of rice. Everything was found, — excepting the blankets —in a marquee at the back of the prisoner's liou: o. The blankets were found in a box, and some between the t.vo ticks of the bed. I have seen t lie articles now produced by Sergeant Molloy. I can swear to the following belonging to her Majesty's sfc res:—l 9 beds, *10 hammocks, 10 blankets. 2 pillows, 7 wi appers, 2 pillow-covers, and G bed-covers and one cot. By Mr. Wynn : The prisoner's contract is still exist i ig. On reference to the account book I find no pillow-cases or wrappers were delivered to tho prisoner for cleaning. SSO pillows wero delivered. I checked the stock 4 times over. I found 16 beds missing then. I id -ntify 19 beds now produced ;.s b donging to tho naval store. I cannot say whether I made a mistake of three pillows in calculation. I checked the stock by tho book produced, which is supposed to contain an inventory of the whole stock. I found eleven wrappers missing Ihen. There are six now produced. Sergeant Palmer ii under arrest for this matter, and is now in waiting. I identify the hammocks by the general appearance of them. I can swear to the red number, and the broad arrow of Government with G O in addition. No stock has been taken of the goods since I had charge of the store until this occasion. I see by the book, however, that stock was taken on the 3rd of March. The Commissariat have sold several similar articles. I cannot swear that none of the goods now produced wero sold by tlie Government. I cannot say that the prisoner was even paid for washing more goods than were actually in the store. By Mr. Merriman .- 1 believe Mr. Chislett refused to pay the prisoner once because he was making an over-chui-ge. The greater part of the goods produced are serviceable stores. I never knew the Government sell stores, such as bedding of this sort, until they are unserviceable. Hugh Palmer; I am a sergeant in the Commissariat Stair Corps. (The witness appeared in Court under protection, being under.close arrest as having been implicated in the matter.) During the quarter from June to September I issued a quantity of bedding to the prisoner. In consequence of orders I receive J, I eountcd the whole of the bedding in the ft re. I have no account of it. I look stock last mont'i. When I countcd the bedding there was a dcticiency. I never knew what was in the store. I never saw the book now produced until the other clay ar tie Court of Enquiry on the matter. I accom- ; a i:o:l Sergeant Molloy, of the police, to the pri;o:ier's house, and found there some hammocks, l c Is, and one cot. I do not know the number. I saw some blankets, but took no account of them. The things now produced are tho same that I saw there, and belong to Government. I cannot swear lo all of thorn. I can identify some, which are marked with tho Government mark S. O. and tho

broad arrow. I can swear to mora than half-a dozcir hammocks and all the beds produced. By Mr. Wynn : I can swear to the beds by their general appearance. I found some in a tent. The articles there were not packed up. It was a small round bell tent, and I should judge by the appearance of the interior that a man slept there*. Th» prisoner was a contractor at the time.- Stock was taken three times. I do not know the result. By Mr. Merriman: There was a difference each time tho stock was taken. I cannot swear that there wore any split blankets amongst the stock. I cannot swear they were issued as whole blankets. William Jifkins : I am a sergeant in Commissariat Stall". I have taken stock of part of the Btore. 1 am now taking stock again, but have not finished yet. Sergeant Hampshire was present on one occasion. There was no deficiency. I previously counted the stock myself, and then found some goods missing. There was no deficiency between my first and second tally. I missed blankets, hammocks, pillows, and beds, and they aro part of the Naval and Military stores. The articles 1 have seen in Court are serviceable goo 's, ami would not have been sold as condemned t ires. Serge n'". Moiloy, of tho Auckland Armed Police, Force, exposed : On the 25th of October instant, 1 executed a search warrant on the prisoner's premises, and found there 19 beds, 6 wrappers, 30 blankets, 6 bed covers, 2 pillows, 1 cot, 40 hammocks, 2 pillow covers, and 1 l ag rice, which I now produce. I found all the articles in a tent outside the prisoner's house, except the blankets, which I found in a box inside the houM.-, and the remainder between two mattresses on the bod. The articles I produce are the same that I have shewn to the several witnesses, and have been in my charge since. This closed the case for the prosecution. Mr. Wynn, in his address for the prisoner, said that he would not long detiin the time of the Court by lengthened remarks, and that he did not apprehend it woidd be necessary for him to call any evidence. The ] r.soner in the dock stood charged with having unlawfully embezzled and appropriaf ed certain stores, viz., bedding, belonging to Her Majesty tho Queen. To prove tho crime of embezzlement there must be deliberate concealment of facts, which was the gist of the offence. The simple fact of any person receiving a sum of money or a quantity of goods and not satisfactorily act ounting for that trust was not embezzlement in the eyes of the law of England unless, and here waß the whole cream of the case, there was wilful and direct concealment of the fact. In the charge now at issue it had been most clearly and distinctly proved that the prisoner obtained the possession of certain goods in a lawful manner, inasmuch as were given to him for certain purposes. Xow, then, no evidence whatever had been elicited to show that his client had attempted .to conceal the articles he w;>s charged with embezzling-. The mere fact of his having neglected to hand over the stoics, and even of iiis appropriating to his own use (which, however, had not been proved) did not show that he was guilty of embezzlement, injudicious and culpable as his conduct might have been. Nothing whatever had been proved to substantiate the criminal charge. JTo evidence of falsification of account had been brought forward at any time. Th® statement of Sergeant Hampshire, that he had given orders for all articles to be returned to the stores, did not prove that anything had been specified. The question was not whether the prisoner had acted uprightly and honestly, but had he committed the crime for which he now stood arraigned. Did he make any false statement, or give a false account ? The counsel for the prosecution had failed to show that liis client had been guilty of either. The learned counsel submitted that the Bench, upon such presumptory evidence, would not be justified in sending the case for trial. There was no ground upon which a jury cou!d commit. The principle of the law of embezzlement had not changed for the last 100 years, and the crime was clearly defined, thoroughly recognized, and plainly laid out. Mr. Wynn then cited a case in point from " Russell on Crime," in order to show that the simple fact of not paying over certain monies or goods entrusted to the care of an individual did not constitute embezzlement. There was no proot to show that his client had been instructed to make up and send in his account; and it was reasonable to suppose that an' acroant would not be looked for until the conclusion of 'he contract, which ended in March. His client was ccrfciinly guilty of neglecting to obey the order of the witness Hampshire but that was not felony, and was in no way sufficient for the Court to send the prisoner for trial. Mr. Merriman rose to make a few observations on the matter. His learned friend had cited a case from " Russell on Crime," which referred to morey, and not to stores. Ihere was no doubt whatever that the storas had been entrusted with the prisoner, and a great fraud had been committed. Tho prisoner had received instructions to send back Jhe bedding by a specified time, which he had neglected to do, and some three weeks afterwards, tho property is found in his house packed away in his box. The crosfrexamination had failed to show that he had got any fresh stores. If the whole of the stolen goods had been found in his tent, it would have been different, and there would be, perhaps, a Bhadow of doubt; but instead of which, some had been found in the prisoner's box, packed up. Surely, this was an unlawful appropriation ? It was a question with him jwhetlier the prisoner should not be indicted for jareeny even yet, and ho would probably consider t his dufy to do so, should the case, as doubtless it would, go before a higher tribunal. It was most clearly proved that the prisoner did unlawfully convert to his own use the goods mentioned in the indictment with intent to defraud the Government. There was no reasonable ground for detention of the goods. The case was clothed with mystery on this point, and he confidently asked the Bench to commit the prisoner to take his trial at the Supreme Court. Tho Chairman said that the duty of the Bench was plainly to send the prisoner to take his trial for embezzlement. Mr. Wynn applied for bail, which was granted, in. tlireo sureties of £200 each, or two of £300 each. A3 SAULT. The c; s) of aggravated assault preferred againt Alice Chamberlain by Margaret Sainsbury was withdrawn by the prosecutrix, and the accused was disc barge with a suitable caution. DESERTION. John Wall was charged with being a deserter from tlie 50th Regiment, and was ordered to be handed, over to the military authorities. LAECENY. Win. Miller was chiirged with stealing a shirt value 2s. (id., the property of Richard Birch. Rich; r I B r.-li deposed: I am residing at the Emigration Barrack. The prisoner is a fellow-passe ng of mine and s 1 jpt in the same room. On Tuesday morning I found four shirts and five pair of stockings, and some towels missing. From information rec eivd I accused the prisoner of having stolen the articles, and he denied it. I saw one of the shirts in the possession of SamuelStephenson, who bought it from prisoner. I identify the sliirt produced as my property. The a a'ue is 2s. Gd. Samuel Stephenson, sworn, said: I reside in Napier-street. I know the prisoner. On Monday about one o'clock I bought two shirts from him for 3i. The shirt produced is one of them. Constable J. M. Clark deposed to having arrested the prisoner and received the sliirt produced from the last witness. The prisoner denied the charge, and stated that the shirts he sold were his own property. The Bench found him guilty and sentenced him to 14 days' imprisonment in the common gaol of Auckland, with hard labor, and trusted it would be a lesson to him to mend his ways. labcen'y. Michael Monovan, alias James Brown, was charged with st( a'ing a silver watch, the property of George Gallagher, publican, North Shore. Prosecutor sworn, deposed: That the prisoner had been at liis house about 5 o'clock on Wednesday last. Tlie watch was then hanging on a nail behind the bar. He missed it immediately after the prisoner left, and no one else was in the bar at the timeThe prisoner, after hearing the evidence o the prosecutor, pleaded guilty to the charge, and was sentenced t > b » imprisoned for six months with hard labour. EMBEZZLEMENT ON THE HIGH SEAS. Ellis Wait was charged with stealing from John Wright, master of the ship, 'British Trident,'lo bcx.'S of sardines, valua 9s. John Wright deposed: I am master of the ship ' British Trident.' The prisoner is an articled seaman oil board. About tlie lltli October last ho was clown b3iow getting passengers' luggage out. Subsequently a box; containing sardines was found broken open and sixteen tins missing, and I accused the prisoner of the thelt, who owned to picking them up. The second oflicer informed mo of the fact, and 1 duly entered it in the log. . Samuel Cot, 2nd officer on board, deposed to having | discovered the caeo of eardines broken open and

' ■Sixteen bo res missing. Ho had afterwards found tlio; stolen property stowed away, wrapped up in a Test and comforter, the property of the prisoner. He had -accused the prisoner with the theft who made no ■reply at first, but s afterwards confessed on the poop that he had taken the sardines, having found them in the hold. The prisoner said he had not stolen the sardines. A man named Thompson had broken open the case, and wrapped them up in his "muffler nnd waistcoat. The Bench found the prisoner gni ty, and ordered him to be imprisoned for the term of six -weeks with hard labor. "STEALING- A " SWAG ." Joseph Kelly was charged with tho nbove offence by John McChiinness, residing at tho Albion Hotel, Auckland. The Prosecutor offered no evidence iu tho ease, and .the accused, was therefore discharged. This closed tho business of tho day.