"TRUTH'S" TROUBLES.

NZ Truth, Issue 240, 12 February 1910, Page 7

"TRUTH'S" TROUBLES.

CHARGE. OF "DISTRIBUTING".

Question of Legality.

HIS HONOR'S OPINION.

"A CONFUSED STATUTE"— COURT OF APPEAL TO DECIDE.

An Amusing Cross-examination — Wilford and the Puzzled Policeman — Bailey the Bobby Bothered — "How do you spell Sibyl?"— A Peeler Phonetically Pogged.

The prosecution, initiated by the Crown against Henry Stephen Cobum, manager of "N.Z. Truth," who was charged on two., counts of having distributed a publication of an improper nature, came on for hearing at the criminal' sittings of the Supreme Court on Monday last, Mr Justice* Chapman presiding. Mr M. Myers prosecuted for the Crown, and Mr T. M. Wilford, with Mr Dunn, appeared for defendant, who pleaded not guilty. Mr Myers challenged ' six jurors, and the defence five. The jury was composed as [follows :'— John Henry Joseph- Extoii (foreman); John 1 Steward, Frederick James Rudge, Thomas Gardiner, Thomas Caldwell, Henry Seven, Wallace Simmons, James bid ward Dawson, Henry Heron,' Robert Brown, John Hesp Burn, John Haughton Fairburn. • The Crown .'Prosecutor, m the course of a semi-emotional- opening address to the jury, declared that it would be difficult' to exaggerate the importance of the duty involving on them m the present case. The subject matter of the prosecution was an article headed "Concupiscent Corybantes," which appeared m "Truth" on November 13, 1909. The jury must presume knowledge on the part of the person responsible because It ;was' his duty to know. He ought td know. They had to presume he did know. The defendant had admitted that he was manager of the paper at the time the article was published.

Mr Myers, after endeavoring to anticipate every possible line of defence, concluded with a picturesque peroration. After resting for half a minute, he resumed the wrestle with his brief, and ordered Alexander Bailey to be called.

Alick could not have been far away, as he answered with alacrity, -and briskly walked over to the witness-box and had the oath administered. His name ? Alexander Bailey, an acting detective, stationed m Wellington. He was led by the Crown Prosecutor to tell the story of how, on November 17, at "Truth" office, he had purchased for 3d a copy of "Truth" of November 13, which he pro.duced and identified. On page 7 of. that issue was a series of paragraphs headed "Concupiscent Corybantes." He also purchased copies of the same issue from two news-agents.

As Mr Myers sat down, Bailey beamed, and stood proud and erect, and with a sort of "come-at-me" invitation smile on his Belfastian countenance. The acting detective was sure that he had bought the paper from Joseph Gilchrist, of "Truth" office, and not a former employee named Minifie. When Gilchrist came into court, called m at Mr Wilford' s request, Bailey identified him and insisted that he had made no mistake.

By this time Bailey unused, apparently, to cross-examination, became rattled. He smiled m an apologetic feotfc of way, and displayed a perfect and clean set of molars.

You honestly believe that Gilchrist sold you the paper ? queried counsel.

"I am sure of that," replied the irritated Bailey, who was next requested by Mr Wilford to read the imprint, which Bailey did with a disdainful disregard of correct punctuation, and a general ]umble of the pronunciation of "Maroubra Bay" and "Coogee," the district m which Mr John Norton, proprietor of "Truth," resides. In dangerously dulcet tones, Mr Wilford next inquired if Mr Bailey had read the article m question. "Yes," was Bailey's prompt response. "Do you know what Corybantes means ?" Bailey hesitated. His nicely-parted light golden lacks became ruffled. "No," he stammered. Then he essayed a guess. "It means lustful dancing girls," he asserted.

The 'tec. breathed more freely. Apparently he thought he had floored counsel.

I suppose, however, that before this it was Dutch to you ?— Yes. Bailey smiled. It might have been hearted "Congenital Stenosis of the Pylorus" and it would have been the same to you ? Bailey (•with a concerned iook) : Yes. That is to say if it was meant to say anything rude, it was so coveted up that a man of your attainments (Bailey smiled) which have brought you to the rank of acting-debective (Bailey beamed), could not understand it ? " Counsel paused for a reply. "I couldn't give the full dictionary meaning," Sherlock Holmes gasped. Thinking something was expected of him, Bailey frowningly essayed to put the late Samuel Johnson to shame. Corybantes, m his opinion, related to Sibyls. He didn't say Sibyls, he said "sillies." He looked, at this stage, as if he would have given the world for a Webster or a Lompriere— or even a shilling edition of "Hcrw to Spell Correctly." "You're not thinking of the Scilly Isles are you '?" Mr Wilford asked, "m a reassuring manner,

With trie bravery of desperation, Bailey rushed recklessly on his fate, and attempted to spell "Sibyl." But the puzzled peeler became hopelessly involved m a phonetic fog, and the hope of the detective force was now* drifting on a lee shore of big, barren words.

"You don't know how to spell it," said Mr Wilford, and Bailey bowed his head m meek acquiescence*

Do you know what a coryphee is ? Bailey confessed that he didn't, nor did he this time attempt to spell the word. "(Jorybantes meant anything to you, didn't it." Bailey admitted it did— and looked it. Mr Myers at this stage interposed and wanted to know where this cross-exami-nation would end. Mr Wilford (addressing the bothered Bailey) '• When a grown-up man like yourself doesn't understand its meaning, you wouldn't expect a child, would you '! . Bailey did not reply. : His Honor : Do you find concupiscent m your Church service? i Bailey (eagerly) : No. Mr Wilford : That, accounts for it. He | couldn't find it there. His Honor : I don't know what church he goes to. Mr Wilford made a facetious remark about the police being too busy on a Sunday to attend church. Then he turned to the detective again : — My learned friend laid particular emphasis on "A Gay Lothario." Is that a Biblical term ? The witness wouldn't commit himself. He said he could not say, as he hadn'tread all the Scriptures. Do you know where it comes from?— l. could not say. Do you know what it means ? Bailey didn't. Would you take it as an insult ? It might mean ."a sad dog." Bravely, Bailey answered that if he were called "A Gay Lothario" he would not take it as an insult. Counsel then brought Bailey back to scratch, and wistfully the acting-detective looked at counsel. Mr Wilford wanted to know whether Bailey carried a dictaonaxy with him always. Bailey did not. Was there one at the office ? — There was. "I don't always use a directory," said Bailey, but hastily corrected himself. One" question brought on another. "Concupiscent Corybantes," "A Gay Lothario" were touched on, and counsel reading from the article complained of came to "The Fair Ophelia." Bailey pric .cd up his ears. .. Here was a chance to show the sceptical world that lie was a bit of a scholar. "The fair Ophelia," said Mr Wilford, lightly — "she had straw m her bait." liajiey smiled a sail static of recognition, "You remember the story," said the Hutt elect.

Bailey saui he did, but his looks would not stand Uie test oi cross-examination.

"Who wrote it '{" Atr ..~*urd as&ed, quickly, and Mr Myers greatly relieved the. badgered bailey uy raising an objection, wuicn, ii ii'iutless, gave Jdailey time to gaouer his scattered wits.

'•Don't you know where it's lrum ?" Mr Wiliuru v.cnt on. Bailey might have been trying to classify Hamlet s luckless love ainuiig the lames he had "va&ged, ' but he answered "JNo."

"Alas, poor *oriclr, I knew him well, Horatio," said Mr Wiliord, m his best theatrical voice. "That's under the heading of !'ihe Dirty ivicK. Out.' " iiauey did not reply, and Mr Wilford sat down. Prosecutor Myers popped up. oiauey grew aimost gay. He Knew wiiat quite a lot of things meant — when judiciously as&cd. 'i'wo news-agents, Herbert Mowtell and Kenneth Alt&en, gave evidence. i Chief Detective Brouerg gave evidence that he knew tnat mr Uouuin was manager 01 "Truth." The announcement on the iront page and on the imprint of ''Truth" was that it was couuuoted and printed and published by John Norton. Mr Norton was not domiciled m Mew Zealand. ; The Cuiet Detective went on i Ito say that on December 3 defendant ' | came to see him m connection, with the prosecution against the paper and against the booksellers. Defendant said he had been manager for about three months and that he would .take the responsibility as j far as a prosecution was concerned. ! Mr Wilford : Did you assume from what he said to you that he had control of f what went into the paper ? — No That was the case for the Crown. Mr Wilford then said he would ask for I a direction on several points before he discussed the defence. Quoting section 157 of the Crimes Act, Mr Wilford contended that (1) "distributor" was , not included m the "seller, publisher, ar exhibitor," the words mentioned m the I section ; (2) that there was no evidence that accused had any knowledge of the improper nature of the article ; and (3) that there was no proof of distribu- , tion by the accused; " , •

His Honor said he would provisionally decide that there was sufficient pfima facie evidence of distribution. Defendant was the official m charge of the office. The matter had better stand, and he would put it to the jury to decide.

After the luncheon adjournment, the defendant gave evidence, and said. he wasthe present manager of "N.Z. Truth." He was temporarily appointed m September, and his appointment was confirmed on Wednesday of last week. He was not the publisher. He had ■ ..nothing to do with the writing of any article that appeared m "Truth" He had. no right to suggest that any article should not be published. He had not so far read the article complained of, and he had purposely refrained from reading the article. He had been ill some time prjor^ to the publication of the paper on No-j vember 13. He had nothing to doi with the wrapping up or delivery of the papers. He would tell the jury that he<! had not seen the article complained of, ; he had not read it, nor had anything whatever to do with it.

The Crown Prosecutor submitted the defendant to >■ a long and searching cross* examination. He denied that he told 1 Chief Detective Broberg that he was responsible. He now said he was not responsible. He had no power to stop the sale of the paper. The general manager 1 of "Truth" was m Wellington on November 13. 'Pressed by. Mr Myers, he would not express an opinion whethes. the article was obscene or not. It might tend that way, but he was not a judgeneither was he a journalist. If he had noticed that article m the paper on November 13 he would not have stopped the sale because he did not have the power to do so.

Defendant was next briefly re-examined by Mr Wilford, and he explained that he was accompanied to the detective office by a member of the staff, who introduced tym to the Chief Detective and observed that the defendant would accept service, and he had gone to the detective office to accept service of any sum? mons. He had no control over the literary department. Evidence was also given by Joseph Gilchrist, a clerk at "Truth" office, who denied that he had sold a paper to Bailey.

That concluded the evidence for the defence.

Chief Detective Broberg, Recalled by Mr Myers, said he had taken a note of? what defendant had said to him on December 3. Defendant said lie was manager and would accept responsibility.

There was no doubt about it. The Cliief Detective,, when questioned by Mr Wilford, could not deny that when Coburn was introduced to him by another member of "Truth's" staff, it was said that he would accept service. After counsel's . address to the jury, His Honor summed up with strict impartiality. The jury retired at 4.51 p.m. to ( consider their verdict. After an hour's retirement they returned into court with a verdict of guilty, strongly recommending the defendant to mercy because of tbe short time be had been manager and his previous good character. .

Mr Wilford then asked his Honor to reserve the points ■' he had already raised. His Honor announced that he would defer passing sentence, and requested Mr Wilford to put his points m writing. The defendant was then released on bail, to appear on the following Wednesday. • ■ • .

On Wednesday morning the defendant appeared, when his Honor said that m Coburn's matter he did not propose to* sentence defendant. He had considered, counsel's request to state a case, and though he had no substantial, doubt on the matter, it had struck him m a certain way. It a case where he should reserve the question for the Appeal Court. The Statute seemed confused. It started off that knowledge was to be presumed and ended m a somewhat different way. l

Mr Wilford said tbat he also proposed to call evidence as to defendant's character, but his Honor said tbat it was assumed that defendant bore a good character.

His Honor further observed that if the Council of Appeal confirmed the conviction, then the other matters could be mentioned. ' '

Defendant was released on bail, pending tbe decision of the Appeal Court.