LAW AND POLICE.

New Zealand Herald, Volume XXVII, Issue 8354, 6 September 1890, Page 3

LAW AND POLICE.

SUPREME COURT.— Sittings.

Friday. [Before His Honor Mr. Just ice Conolly.]

The Jewellery Robbery. — Alexander McLean, who on Monday last had pleaded guilty to a charge of having, 011 the 12th of July, feloniously broken into the shop of James Howden, jeweller, Queenstreet, and stolen therefrom a large quantity of jewellery, was brought up for sentence. Mr. Tole, who appeared for the prisoner, addressed the Court. Ho admitted that the case was a very clear one, and it was difficult to ask for leniency. Prisoner came hero from New South Wales where there was a dearth of work, leaving his family, and finding it impossible to geb work in Auckland, he was in a state of despair. He saw the jewellers shop unguarded, and he gave way to temptation. The time of the occurrence was broad daylight, when he was bound to be detected, and this showed ib to be a sudden temptation, and he would therefore ask for leniency. His Honor said no doubt Mr. Howden acted very imprudently, and had he not returned sooner than was announced on his notice the whole property would have been carried off. Mr. Tole said he was glad to say that Mr. Howden had suffered no loss. His Honor said Mr. Reston had reported that prisoner had been sentenced in Sydney to five years' penal servitude, but as there was no legal proof of that, he should not take it into consideration. Still, he should not look on this as a first offence. The sentence of the Court was that prisoner be sentenced to 12 months' imprisonment with hard labour.

False Pretences. —Joseph Bairn was charged that on the 23rd of June he did falsely pretend to one John Alexander Walker that certain gum then lying in the warehouse of W. R. Walker and Co., was his property, and obtained from the said J. A. Walker the sum of £3 7s 6d. Mr. Madden appeared for the accused who had already appeared "not guilty." Mr. Williamson before opening the case to the jury asked His Honor's ruling as to whether he should be allowed to give evidence of prior transactions, as if so, he should refer to them in his opening to the jury, but, if nob, of course, he should not refer to them, or give evidence in support of them. Ho quoted authorities to show that it might be allowed. He submitted that in this case the takings were a continuous act, the articles being taken by the same person, and from the same store. Mr. Madden opposed the application. His Honor said he I should admit the evidence. The case for the prosecution was this : On the 23rd of June the accused went bo Mr. Walker's gum store, and claimed that certain gum then lying in the store of W. R. Walker and Co. was his property, and that he was entitled to payment for it. Mr. Walker referred to his storeman, Jeffreys, who ; had sinco disappeared from the colony, | and Jeffreys said that the gum was Barry's. This was said in Barry's presence, and he did not deny it. Ib would be proved that there was an arrangement made between Jeffreys and the accused by which the latter was to go and claim certain gum which the former had taken from ccrtain heaps of gum in the store, and obtain payment for it, and it would also be proved that on eight other occasions similar frauds had been perpetrated. The fraud, however, was discovered, and Barry was arrested, but his answer was that he got nothing out of ib, that ho merely acted bo oblige Jeffreys. It appeared, however, that he got the money, and took it away, and his representation that he was an innocent agent would not avail him. Mr. J. A. Walker in his evidence deposed to having paid to accused at various times, and under similar circumstances sums of £6 4s 4d, £6 7s lid, £3 16 lid, £6 2s lid, £5 6s yd, £5 14s 2d, £5 lis 9d, £3 9s Bd, and £3 7s6d. These payments were made during the months of April, May and June, and the last item was that on which the indictment was laid. When prisonor was arrested, he told Mr. Alexander Walker that he only did it to oblige Jeffreys, who told him he had bought the gum on the wharf, that he was making a small profit on ib, bub did nob want his femployers to know it. He admitted to the witness that he did nob bring the gum. After the 23rd of June witness took stock, and found a deficiency if '2 tons IScwt 171b, and the gum for which he paid Barry was 2 tons IScwt islb, representing almost the total deficiency, and the amount ho paid Barry was £134 lis lid, between the 10th of April and the 23rd of June. Joseph Chadtvick, Warren Reynell, and R. G. Radford, storemen in the employ of W. R. Walker and Co., gave evidence, and Detective Chrystal, who arrested the prisoner, was also examined. Tho accused admitted to witness that ho di 1 not bring the gum to Walker's store ; that it was Jeffreys who told him to represent ho had brought the gum there, and that he said so in order to oblige Jeffreys. Ho got the money for tho gum, and gave it to Jeffreys. For the defence, Mr. Madden contended that there was no evidence of guilty knowledge on the part of the accused. He called the accused bo give evidence. Accused said he was a licensed porter. Jeffreys met him on the wharf, and told him he had bought a sack and a-half of gum, and asked witness to sell it for him, as he would not like Mr. Walker to know that he was dealing in gum, as it would not look well on his part. Witness knew at this time that Jeffreys was in the employ of Walker and Co. Witness sold the gum, received the money, and gave it to Jeffreys before he left the store, and he received nothing then from Jeffreys. On other occasions ho received 2s to pay for his time, and witness -nplained of the smallness of the payment, but Jeffreys said the margin was so small that ho could not afford more. Accused had never previously been charged with any offence, not even with drunkenness. Patrick O'Kane was called, but did not appear. David Oliver, licensed porter, deposed that accused was a man of good character. He had known him for the past four years, and always found his dealings satisfactory. William Porter, handcart man, also gave accused an excellent character. Counsel did not address the jury, and His Honor summed up the case. The jury retired at twenty minutes to one o'clock. The jury returned a few minutes before one o'clock with a verdict of guilty. Prisoner was released under the First Offenders' Probation Act, to be under probation for twelve months.

Cattle Stealing.—Robt. Pan-is pleaded guilty to a charge of killing an ox with the in ten oto steal the carcase. Mr. Tole appeared for the accused, and called evidence as to character. Messrs. T. B. Hill, W. Duncan, and Constable Bulford gave evidence as to character, and prisoner was released under the First Offenders' Probation Act, to be under probation for twelve months.

Breaking and Entering. — Michael Kirby, alias Lynch, pleaded not guilty to a charge of having, on the 3rd of August, feloniously broken into a counting-house at Pukekohe, and stolen therefrom an iron safe and a quantity of securities and money the property of Her Majesty. The whole of the details of this case, one of many in v/hich the accused is concerned, will be fresh iu the memory of our readers. Evidence was given by Ralph H. Nicholson, Arthur F. Brown, Arthur Cranston, Henry Miller, A. G. Pullonfj, Thomas Stanley, David Blake, Constable McGovern, and Detective Herbert. It showed that the railway station had been broken into, the safe carried away, and an unsuccessful attempt made to break it open. The prisoner did not give evidence on his own behalf or call any witnesses, but, being unable to read or write, he gob some person to write a statement for him. This he handed in, and it was read by the Judge. He submitted the impossibility of identification of the man who was seer, wheeling the barrow with the safe, and that the evidence of identification was not positive. Nothing was found on him to incriminate him on this charge. His Honor summed up to the jury. The jury retired at five minutes past four o'clock, and returned in twenty minutes with a verdict of guilty. His Honor deferred passing sentence, as there were other charges against the prisoner.

The Court adjourned until ten o'clock next morning..

R.M. COURT.—Friday. [Before Dr. Giles, R.M.] Howe v. Union S.S. Co.—Mr. Cotter tor plaintiff, Mr. Campbell for defendant. This was an action for the recovery of £28 16s 6d, damages sustained by plaintiff for alleged loss of articles of clothing, jewellery, and six sovereigns, said to be stolen

from a tin box on the voyage from Melbourne to Auckland. The evidence of plainwas taken on the 21sfc ult., and judgment reserved. Judgment was given as follows :— This is an action in which the plaintiff claims damages from the Union S.S. Company for the loss of a tin box, on the voyage from Melbourne to Auckland, on which voyage the plaintiff himself travelled as a steerage passenger. Some three weeks after the plaintiffs arrival in Auckland, the box was recovered by means of the inquiries instituted by the company, but it had been burst open and some of the contents stolen. Amongst the articles stolen were some gold sovereigns and a gold ring, and assuming that the defendants were liable as common carriers for the box as ordinary luggage, the question would still arise, how far they would be liable for such things as coins and jewellery. On the plaintiff's ticket is endorsed the following condition :—" Personal baggage. In order to insure as far as possible the safe custody of luggage on board, an officer of the ship is appointed to register and take charge of same, and passengers should personally see their luggage delivered into his charge. Each adult saloon passeilger may carry, free of charge, bub at his own risk, 20 cubic feet of luggage (all in excess of that quantity must be paid for at the current race of freight), but the company will not hold itself responsible for any loss, or damage to, or detention, or overcarriage of baggage, under any circumstances whatever, unless it has been booked and paid for as freight." The question raised is whether this condition is a reasonable one, and whether ib exempts the company from their liability in respect of the plaintiff's property. Ib is nob easy to give a perfectly consistent meaning to all the parts of this condition. Saloon passengers are allowed a certain quantity of luggage free, but all beyond that must be paid for. Yet, the first part of the clause seems to contemplate the carriage of luggage free, which is to be placed under the charge of an officer, presumably being stowed in the hold and registered, in order to insure as far as possible its safe custody. Bub the last part of tliQ condition, at all events, is perfectly free from ambiguity. It purports to exempt the company from liability for any baggage under any circumstances unless it, lias been booked and paid for as freight. Ib has been doubted whether a company is a common carrier in respect of passenger's luggage, within the meaning of section 2 of the Carriers' Act, 1886, bub it was held that they are so in Dal ton v. Union S.S. Co., 3, New Zealand Jur., 57 (187S). The right of a carrier to limit his liability, by special condition, for the loss of or damage to passengers' luggage is expressly asserted in P. and O. Co. v. Shand, 3 Moore (N.S.), Pr. C., 272, and it seems from that case that the onus of proving negligence lies on the plaintiff. In the present case the evidence points to a theft by some person unknown, and there is no proof of negligence. Moreover the condition does not purport, as in Dalton v. Union S.S. Co., to preclude liability for luggage under all circumstances, bub only unless it has been booked and paid for as freight. I cannot call this an unreasonable condition. The company surely has a right to say, " We will take what care we can of your luggage, but we will not be responsible for it unless you book and pay for it as freight." I think, therefore, that the condition exempts them from responsibility, at all events in the absence of proved negligence, and the judgment will bo for the defendants with costs, £3 3s.

POLICE COURT.—Friday.

[Before Messrs. Jas. Gilmouv and S. Y. Collins, J.P.'S.J

Drunkenness.—Ono nrot offender was fined 5s and costs, or 24 hours' hard labour. John Robinson, for being drunk in Queenstreet, was fined 20s and costs, or in default 4S hours' hard labour.

Police Offences' Aat.—Robert Salmon was fined Is and costs for having committed a breach of the Police Offences' Act by riding a horse upon the footpath in Nixon-street on the 26th August last.

Chimney on Fire.—Ellen Thomas was charged with a breach of the City By-laws by allowing the chimney in the house occupied by her in Victoria-street to take fire on the 29kh August last. A fine of Is and costs was imposed, the accused having pleaded guilty.