SUPREME COURT.—Criminal, Sittings.

New Zealand Herald, Volume IV, Issue 1189, 5 September 1867, Page 4

SUPREME COURT.—Criminal, Sittings.

Wednssdat, Sbptbmiier 4. (Bcforo His Honor, Mr. Jnstico Mooro.) OBTAINING MOSEY T;NS)EK TAXBE rnKTEKOBS. ' " Walter Isaac Donchaise, was indicted for having on the sth Juno, 1867, fulsoly ropronerited to William Fra6er, thac ho (the prisoner) was possessed of 681 lbs. of typo, nnd that lio hud bought tho eamo from Mpssrs. Jftidings and Pereton, for tho sum of £114. 10s; and for having, by moans of such false pretences, obtained a cheque for the sum of £5,' from tha said Captain William Frnaor, with intent to fraud. Mr. Brookfield appoared for the prosecution ; Mr. Wynn for the dofonce. Considerable delay occurred in cmpannolling a jury, tho lenrnod counsel on oiihersi'lo availing themselves of tho right of challenge. At tho outeet of the cnso" Mr. Brooljfield applied for leave to amend tho indictmont in order •to insort the words "£5 in cash," instead of "a cheque for tho sum of £o." Mr. Wynn objcctod to tho amendment on the ground that it would prejudioo tho prisoner's defence, if tho prisoner wero acquitted on this indictment as it etood, tho prosocutor might framo a new indictment against tho prisoner, and try him on it the next sessions. Mr. Brookfiold having replied, His Honor said the question was ono merely of the value, of tho money or property obtained. In a churgo of false pretences it was not the value of tho thing obtained that was considered, but false reprelontations by which it had been obtained. Mr. Wynn said it was absolutely altoring altogether tho nature of the property said to have been obtained, and it put the prisoner in a new position altogether. , iiis Honor: I must confess Tam not quits«o clear upon tho point as I should liko to be, but the bet way will bo to allow the amendment and lot a note of your objection bo taken. William lfrnser, doposod, that he was an auctioneer, carrying on business at Tauranga. On the 6th of August witwoss sued tho prisonor for rent of the •type and plant of the Tauranga Argus. A few miniites before the case came on the prisoner came to witnesß and produ-'od & receipt, allowing that tho typo had cost him JEI47 odd. Prisonor said lio did not wish to go to Court., ni he had a wife and family, and it would coat him a great deal. Asked prisoner tho amount of the book debts of the establishment, and ho said about £40. Prisoner said ho would give. witnoßs peaceable possession of tho plant arid typo, if witness would give him that sum to take him out of tho colony. Witness gavo prisoner £6 on account nnd withdrew tho action; was induced to give tho mouoy by that Btatoment a* to the cost of tho type and • the production of tho receipt. Told Mr. Henderson of the arrangomont ho had made in tho presence of the prisoner. Put tho arrangement in writing, and on risiting Donchaiso's house a small parcel of typo was shown to witness. Prisonor said tho remainder was in his ■wife's bedroom. Prisonor eaid ho wanted a little ready money and witness crave him £5, promising a chequo for tho reinaindor. Witness wont to the offico, and on seeing the typo said ho did not think thoro was anything liko tho quantity of typo prisoner had represented. Prisoner then produced the rsceipt. William Stiolibury, a clork in Mr. Brookfield'a offico, deposed that ho hud sorvod tho priaonor in tho Mount Edon Gaol on Saturday last, about 4 o'clock in tho nftornoon, with a notico to produce the receipt alluded to. Jlr. iSrookfield proposed to call secondary evidence as to tho contents of tho receipt, Sir, Wynn objected on tho ground that the prisoner's residence wns at Tmiranga, and the notice was therefore insufficient for the production tho receipt from that place. His Honor inquired if tho prison regulations wero such as to provont a prisoner, being sorved with a notico to produco, communicating with his counsel. Mr. Wyim said that was tha stato of the Gaol Regulations, nnd it was only by chanco or through kindness that a prisoner could communicate with his solicitor on an emergency of this kind. /lis Honor said if the Gaol Kegulations wore such as to leave it to chanco for a prisonor to communicate with hia solicitor, ori" being served with notice, he would represent the matter to tho proper authorities in order to have tho matter remedied. Mr. Wynn said in any case tho notico had been too short. His Honor said ho thought it lay upon Mr. Wynn to show that tho document was roally at Tauranga, and that tho prisoner had been unablo to produco it. Mr. BrookDeld said it was tho usual custom in tho gaol for prisoners wlion for?ed with a notico to send it to tho gaolor, who would tako steps to allow the prisoner to comm*nic>«to with his solicitor. Ifthe document was essential to tho prisoner's defonoo it was natural to suppose that he would have it himself. Mr. Wynn argued that tho prosocutor had not served tho notico within a reasonable time, sufficient to enable the prisoner to produco tho document. The Court had no right to assume that the prisoner had any solicitor at the time, and tho prosecutor should have givon the notico long boforo Saturday Inst, as the prisoner had been some weeks in custody, Kvon at the triitl beforo tho Bosidenfc Magistrate" at Tauranga, tho prisoner had. not been called upon to produco tho recoipt. His Honor said he was disposed to think that tho notico was insufficient, and referred to a case of arson in which notice to produco a certain document was served upon the prisoner on tho day preceding the trial, and the prisoner's rosidenco being 30 miles from tbo assize town, the notice was deemed to have been insufficient. Taking that cafe into consideration lio (tho learned judgo) would say that, in the presont case tho notice had been insufficient as far as timewent. Then it became a quostion for consideration whether tho e'ocument wns not such that tho prisonor must havo known thnt it would bo necoesary to produco it at tho trial, that tho absenco of tho document might prove quito ns unfortunato for. his defence as for tho prosecution. Mr. Wynn : The prisonor is not bound to give ovidenco against himself, ho may havo purposoly left tho document behind. His Honor referred to sevoral eases, Bliowing thnt where tho indictment contains what tho Court deems sufficient notico of tho necessity for producing a certain documont no other notico'is required. In a case of direction of a post letter this rulo wns held to bo good, and also in another easo in which a witness had made an unlawful oath. Mr. Wynn said ho had only receivod tho indictment on Monday ovoning. His Honor said notice of tho objoclion should liavo been givon boforo the commencement of the trial. Tho objection should havo'boen made in the form of an application for a postponement, on the ground that the prisonor had received insufficient notice to produce a certain document. Mr. Wynn (after carefully examining tho indictment), X see nothing hero: your Honor about any receipt. Rir Honor after looking over tho indiotmenfc said ho found that it did not contain nny notico to produce the documont, nnd he was thorcforo disposed to think that tho notico wns insufficient. Previously to examining the indictmont .ho had thought it referred to tho roceipt, but ho now saw (hat ho wns in error. There was no diroct reforenco to tho receipt, and nothing constructive, and thoreforo ho did not think it could bo construed into a notice to produce.

Mr. Brooifield argued that the document was of such a nature that the prisoner must have known that its produotion would be necessary, and since he had preferred not to flo so, it was to be presumed that he deemed it inadvisable. His Honor after some further decision ruled that secondary evidonco was not admissablo. Kxamination continued: Prisoner said tho whole of the typo had coefc him £147. Cannot remombcr whotber ho told me the namo of tho person from whom ho bought tho type. Mr. Brookfiold : After that evidence being exoludod tho caeo must break down. It is impossible to proceod without evidonco as to tlio naluro of the document.

Mr. Wynn : Thon we will tako a verdict of " not guilty." Hia Honor: lam bound to say tliatl am not quite bo confidont as 1 should liko to bo, but it seems to mo to come within the principle of tho casos whore ifc wag doubted whether tha evidonco was admissablo, though I should like to give tho mattor fullor consideration. However, I must direct llin jury that there is no evidence to support tho iudietment, and that under the circumstances tlioy muat return a verdict of not guilty. _ _ . Tho jary returned a verdict of " not guilty" in accordance with tho loarned judge's direction, and the prisoner was discharged. The Court then adjourned until Monday, next at ten o'clook in the forenoon.