THE CHARGE AGAINST BUTLER.

Oamaru Mail, Volume IV, Issue 1252, 22 April 1880, Page 2

THE CHARGE AGAINST BUTLER.

- THE PRISONER SENTENCED.] * £ [by telegbaph.] J =. (eeom ottr own correspondent.) jj Dujtedik, April 22. At the Supreme Court criminal sittings, Dunedin, to-day, before his Honor Mr. Justice Wiliams and a. commonj ury j ' c ; Robert. Butler, alias Donnelly, alias * Medwayj alias Lees, was indicted for that g he did, on March 12 and t burglariously -break and: ; enter into the dwelling-house of John Stamper, and for g that he did then steal one binocular fieldglass of the value of E2 10s. • * The prisoner pleaded guilty. • His Honor (to the Crown Prosecutor) : £ There are one or two other indictments ; what do you propose to arrainge him on . next? ]j Mr. Haggitt : There is an indictment for larceny, your Honor. |! Prisoner was then indicted for that, on March 12, he did steal three books, to t wit, one copy of "Bree's Masses," one copy of the "Catholic Psalmist,"- and one copy of the " Westminster Chants," | the goods and chattels of the Right Rev. -j Patrick Moran. The indictment went on to say that this offence was committed after prisoner had been committed in this Court' of felony on October 2nd, 1876, which conviction is still in force. Prisoner : I scarcely understand how I , am to plead. Am I to plead to both of • those ? , ( His Honor : The second matter to . which you. are called upon to plead is ■ that you are charged with having been convicted of felony in-this Court before. Prisoner :.But will the one plea include the two counts to the indictment. His Honor : You can plead separately if you think it necessary. Prisoner : I plead not guilty, to; the first section of the indictment. The following . j.uyy w&3 then sworn : John. Bell Mudie (Foreman), James Wallace, Charles Yates, Wm. Renton, Arch. M'Glashan, Edgar Perrie, John Sutherland, : Thos. Walker, Jas. Adam Calander, Charles Townsend, Andrew Hogg, and; James W. Lee.. The Crown Prosecutor addressed the Jury as follows i May it please your Honor and gentlemen, of the jury, the indictment now read to you is the usual indictment of simple larceny. The prisoner is charged under that "indictment with having stolen, on March.l2th, three books of music, the property of the Right Rev. Bishop Moran, the Roman Catholic Bishop of this Diocese. The facts so far as the depositions.' show, and as they • will be given in the evidence now before you, are very short arid simple. The oase againpt the prisoner turns entirely on the recent possession of' stolen property. It will be proved to you that, the music mentioned in the indictment was in charge of Mr. Norman, who is the conductor of the choir of St. Joseph's.Church. books were kept in a cupboard in the organ-loft-of the church; ; They, were last seen in the cupboard on March 11, and they were missed very shortly afterwards. This is all that is known about the loss of the music, but two days after it was last seen in the: choir. of. : the church; it was found in the possession of the prisoner at his lodgings at the Scotia Hotel, so that | you see the case against the prisoner is just exactly what I told you just now—that tliig property is proved to "have been stolen, and immediately, or almost immediately afterwards, it is found in the possession of the prisoner. If he can show to you how he became possessed of the books honestly, it will be your duty to acquit him. On the other hand, if he ct°es pot apcount for their possession to your satisfaction, it will be your duty to convict him. That is shortly the case against the prisoner, which will be proved by the evidence of three witnesses. Alfred Harold Norman, bank clerk, deposed that he was conductor of the choir at St. Joseph's Church. He recognised the books produced as choir pro* Dorf-.v "belong?"' t_. Moran, ana had been m witness possession. He last saw them in a cupboard in the organ loft on 11th March, and missed them on the 14th (the following Sunday). He next saw them on the 20th, when they were in the charge of the police. He did not know the prisoner. No person had authority to take the books. Cross-examined by the prisoner. , Prisoner : You say that nobody else had any authority to take these Wit? ness ; No. On whopa doe 3 the giving of that authority depend.?—On my authority. I have charge of the' music, and nobody is allowed to take music out unless I give them authority. : Has no music been taken by any other member of the choir without your express authority ? —None that I know of. Do you mean to say that members of the choir are so strictly hound down to rule that they can't take a book and bring it back agaip—canpot move books with* out your actually giving them leave tp do so ? —They do pot do so without my authority. I- ask you if they are go bound—if there is such a rule ?—There is.no express rule', but it is a recognised custom. Do you absolutely' know that no one does take anything away.without reference to you ? —Ye3. How can you know that a member of the choir cannot take iijusjc and does not bring it back next practice day ? —He could not move it without me perceiving it. .. . If one member of the choir should be using that small book do you mean to say you are certain to see him put it Not in that instance. ; Then you •do hot know whether "the* members of the choir likes to take away a piece of music without my proteotion ?—I cannot perceive it or know of it. . You should havesaid that-—just that.— I think without being so positive. May I have those books, your Honor. (The books were handed to the prisoner). I see there r are books here not mentioned in the in-, f dictment. > Mr. Haggitt; You need not mind those , not riaentioried jn the indictment, s HisHopor ; Thatdpes not effect the , question. Prisoner (to witness) ;. What are the : naipeg of the three books Yan Bree's First' Mass, 11 -' 5 The Catholic psalmist, and (t The.. Westminster Chants." The " Westminster Chants," who are they compiled by?—l do riot know. You do not know that. Who is the Catholic Pasalmist" compiled by ?—I cannot say. What particular mark do you know this particular Mass " Yan Bree" by ?—Well, there is a stamp which, to the best of my belief, is the stamp of the bishop of. the dioceso. , " What mark do you know the "Westminster, Chants" by ?—No particular mark j but I recognise the book;. : Prisoner : How do you recognise it if you no particular ' rparks uppn it 1— : From the general appearance pf the book. I can swear to the book. Do you think there is.po book in Dunedin like that ? Ido pot say that; but I cap repogpise that book ag belonging to our choir. You have, no mark upon it. Do you mean to say there is no other book with a general. appearance ■ like that ?—I do not mean to say that. Then, you admit there are books with a general appearance like that ?—There may be. Then, how do you distinguish it from any other book with a general appearance like it, if there is no particular marl? on it? —There was a name on it. - • That will do. There is no name now. How do you identify the " Catholic Psalmistl identify that by its general

appearance, and there was a name on it, j which has been erased. . 8 Then, you recognise this book by its c general appearance and by something that t is' not upon it. Well, do you suppose a that this is the only copy of the " Catholic i Psalmist "issued by the publisher?—No; i I do not say that. I Did j;ou ever see a book like that before s with the same name ?—Yes. t - Then, you identify these-books by the general appearance, and say there are t other books of the same general appearance 1 -Sow. do you identify them ?—By c the stamp. Have you seen that ■ stamp ? Can you f swear, of your own knowledge, that, sup- * posing these were the books that were in s your charge at one time, that they were not removed by some member of the choir?— Yes. 3 How can you swear that? You have just said that members of choir may remove books, without your consent, —that a you do not watch them narrowly. How i can yon say, then, that they have not been removed by some other member of • J the choir?— Because nobody has access to ithe cupboard except myself, and that book ] " Van Bree's Mass," had not been in use i for some time, so that members could not l lay their hands on it. 1 These books were last in the cupboard when you saw them ? —Yes. 1 "Ana you did not take them out ?—No. Then, somebody must have had access - to the cupboard beside you ? If that is 1 your only reason, I cannot see how you can say nobody had taken them from the i cupboard but you, Do you mean to say ' it is an' absolute law laid down that no- : body shall, remove any book from the choir without your permission ? Do you mean to say that no member of the ohoir has a tacit permission to take a book home and bring it back again ? —No he has not. There is no such tacit permission, Witness (to Mr. Haggitt) : The books have been in my charge about twelve months, and during that tima I have seen them frequently. lam positive these are the books I missed. The prisoner ia not a member of the choir. On Bishop Morap being called, the prisoner said ; I object, your Honor, to the examination of this witness. He was not examined at the preliminary investigation, and I have not his depositions, TTis Honor : There is.no reason why he should not be examined now. The only reason why objection should be raised would be that he is to give some evidence which may be reasonably supposed to be a surprise to you. In no case have you any-right to object to his being examined. I believe that, a§ a rule, where a witness is called whose name is not on the depositions, intimation of the fact is given to the other side ; but, although usual, it is not necessary.; Mr. Haggitt: It is not necessary now. The Bishop is only called to identify his ! 'own books. Dr. Moran, in his evidence, said : I am not" able to recognise-the Psalmist," nor | the-- Westminster Chants." I think I ' can recognise the Masses., I will tell you ' what I have to say about it. A member . of the choir asked me to buy a dozen ; copies of " Van Bree's Masses," and at ' the end of 1877, or the beginning of 1878, ! I cannot"say.exactly which, but Mr. West ; can tell, I bought from Mr. West the only ' nine copies he had, , I know that I paid ! for them, . In January, 1878, Mr. West sent them up to my house, and I stamped 1 them then and there with my own stamp, [ <l Diocesis Dunedin Ensis." lam able to 5 recognise by this stamp this copy of the 1 Masses as my property. Sa far as the ' other two books we oonoerned I would 3 not undertake to say anything about them. * I could not identify them. There are c many other books like what I have been " in the habit of using in the choir, but I would not undertake to say that these are 3 they. If Mr. Norman has said that they belong to the choir, they are my property. > With regard to the " Westminster 3 Chants," I have no recollection of purchasing it, I have a number of these I (the Masses} in my own house, and the cnoir got one ."Tot them. 1 dia nut, authorise the prisoner or anybody else to | take this music out of the choir. The prisoner : That book entitled ' c Westminster; Chants" you do not claim Has your property ?—I am not able to say , anything about it. Then you do not recognise it as your own property ?—No, , Will your Lordship positively swear * that this is a mark of yours ? I cannot " see what it is.—l swear positively to it. |. It is. " Diocesis Dunedin Ensis." I put r it myself on all these copies. Sarah Gillespie, housemaid at the Scotia ' Hotel: The prisoner was lodging at the Scotia Hotel on March 11. I saw the books produced on Friday, March 12. The prisoner was then using them, in the ' parlor of the Scotia Hotel. The music . was never there before he came to the house. I asked the prisoner where they came'from. He said, " They are music." 1 He said nothing more about the books. J saw him playing over this (the sheet | music). For one of these pieoes he said he had paid a shilling.

Prisoner : I object to this witness giving any. evidence about this music •which is not mentioned in the indictment. His Honor : There is no reason why she should not be examined on them. : Mr. Haggitt ; I dq nos Tyant to, examine her on th§rp. His Honor: Perhaps you ought to have Norman recalled to . continue liis cross-examination as to that. Mr! Haggitt: It would be rather in favor of the prisoner than otherwise. However, I will leave it to. the prisoner to get it out "himself if lie likes. The prisoner did hot not cross-examine this witness, though she was kept on the witness stand for a couple of minutes after her examination was concluded. This closed the Crown case. The Prisoner then addressed the jury as follows : —lt has not been shown, gentlemen of the jury, that the books were not first removed by sorqe member of the choir. In all such institutions ind assemblies as this there can be no absolute tacit rule laid down, and there never is.. There is the probability that i the books were taken by some member of the choir, The witness Norman, though : he would like to. say that they were the ; ghyrch property, is unable to do so. Two of the books are not fairly recognised ; at all events, the witness oan only say he recognises them by their general appearance. The books are of a very general appearance, and there are others of a similar character. The witness said to be the real owner of the books knows nothing at all of them. One of the books has not been used for a considerperiod ; only one bobk has, in fact, been identified, and I would simply state that it has not been shqwn that the books might not haye been taken ;n the first instance by some member the choir. It has not been shown that they were , taken by myself. This is all I have to say. His Honor : Gentleman of the jury \ the prisoner is indicted fqr. stealing books i which you have had produoed before you. j The law is : this that if property whioh is shown to have been stolen, and which £ has been found in the possession of some ( third person, the person in whose : possession it is found is presumed to have j stolen it unless he can reasonably account _ how he came by it. This property is v found in the possession of the prisoner 3 he has given no account of how he came by it. The questions for you are—Was $ the property stolen or not? and are those . books as sworn to distinctly by the witness Norman the books which are part of the music of the choir of St. Josephs Church? if you are satisfied of the identity of the - books and I put it to you whether upon f< the evidence—-whiQh I need «ofc (rouble £

you with,-unless you -n'eed it—-if you are satisfied with Norman's evidence there can bo no moral doubt of the identity of those books. If those books were there and were missing and found shortly after in the possession of the prisoner, and. there is no reasonable explanation how tho prisoner came by them, then the presumption is fair that the prisoner stolo them. The Jury found the prisoner guilty without leaving the box. Mr. Haggitt : There is another charge of assault. His Honor : I would suggest to you, as far as the assault is concerned —Is it worth while taking it up with those substantial offences proved against him ? Mr. Haggitt: Yery well, your Honor. The Registrar (to prisoner) : What is your age? The prisoner: Twenty-nine. The Registrar : Have you anything to say why the sentence of this Court not be passed on you according to law. Mr. Haggitt: We are not quite finished. •There is the latter part of the indictment. * His Honor : I understood the prisoner, pleaded guilty to the Becond part of the indictment. . Mr. Haggitt : No ; lie pleaded not guilty. Prisoner: It was, your Honor, to the second part I pleaded guilty. Mr. Haggitt: That is all, then, your Honor; if he does not deny it, that is all that is necessary. - The Registrar repeated the challenge in respect to the burglary and the larceny, after a previous conviction for felony, in reponse to which The prisoner replied : Nothing, sir. His Honor : What is known of the prisoner? : Mr. Haggitt : Before the prisoner cam© to this Colony at 'all yOur Honor, I am. informed that under the name of George Lee, alias Wilson, he received various sentence. He received si "sentence of twelve months for vagrancy at Melbourne on the 17th September, 1860 ; twelve months for larceny on the 2nd February, 1863;. six months for vagrancy on the 19th May, 1862, at Richmond; five years for assault and robbery under arms on the 15th December, 1864, at the Supreme ; Court, Melbourne ; six months'.imprisonment for receiving stolen property on the 15th December, 1864, at the Supreme . Court, Melbourne ; five years for burglary - on the 15th September, 1871, at the i Supreme Court, Melbourne. In addition j to these prisoner here received three . > months' hard labor for larceny in August, I 1876, and in October, 1876, he was sentenced by this Court for burglary, lar--5 ceny, larceny, larceny, house-breaking, . and house-breaking—six distinct charges » —to four years' penal servitude, t His Honor : Yes, I remember prisoner being sentenced. At that time the circumstances of his previous career were j not brought to the attention of the Court, I suppose they were not known, x Mr. Haggitt : The two offences fo* r larceny were [ His Honor: Yes, I think you mentioned j the two police court ■ cases which were, in r fact, simultaneous offences with the other, i Mr. Haggitt: Almost so, your Honor, t They were committed at the same time, or within a day or so. And I may ment tion, your Honor, that in this case there y is little doubt . i His Honor: Yes, I have read the t depositions, and the probability is that i the person who oommitted the burglary , set fire to the premises. 0 Mr, Haggitt: With the people asleep e in the house at the lime. e His Honor : Yes, I have read it, d His Honor the Judge, in passing sen* !. tence, said : Prisoner, it ia evident that, e during the whole of your life, you have n never ceased to Qomw.it crimes; that, 1 from your earliest childhood, you have e been a persistent enemy of sooiety. y When the Court has to deal with an r. habitual criminal such as you are, it is sr absolutely necessary that such a punish^ ment should be meted out as will prevent. Ie the danger to society which will neces-. Ie sarily ensue from such a character aa Itl youraelf being at large. The sentence ,o I am about to pass, I wish you dis-» tinctly to understand, is not measured in d any degree by what took place recently, n For, that, charge you were acquitted, y Such a verdict hy no means exonerates ycu from the grave suspicions in respect tr to that charge. I conour in that verdict, ' not because I am convinced of L r your innocence, but because, in my opinion, >t the evidence brought against you was nob L sufficient to justify a verdict of guilty, J it particularly wish you to understand thai the suspicion which must weigh upon the a mind of everybody in respeot of that e transaction does not affect in the least tliQ e sentence thatlam going to pronounce. The », sentence I pronounce is based on your e previous career and on the oircumstance c that immediately after you were let out of e gaol you commenced again a career of v crime—larceny and burglary, the latter " accompanied in all probability, though i. that is not put against you, by arson. The ; t sentence of the Court is that, in respect ta d the burglary, you be kept in penal servitude in the Colony of New Zealand fop a eighteen years; that iu respect to tho s larceny, after a previous conviction, you be kept in penal servitude in the Colouy y of New Zealand, for a term of ten years. The sentences will run concurrently. e Your sentence is therefore, on the whole, eighteen years' penal servitude. 0 Mr. Haggitt <ln deference to what s you? Houor said just now, I will enter a nplle prosequi upon the indictment of as--1 sault with intent to shoot. His Honor j Yes ; but there are other 3 indiotments. Mr. Haggitt : There is another indict--3 ment for murder against prisoner, and tho > Coroner's inquisition. With regard to 3 these, your Honor, I do not know. His Honor : It would be better for you to consider what oourse you will take with respeQt to thenv It is, of course, a 7 matte? for serious consideration. It is i not my province to advise you, I refrain * from making any suggestion, not because, ' as you must know, I wish to shirk any ! responsibility which properly falls upon 1 me, but because I am not responsible, 1 The Qrown is responsible, and if the ; Crown makes any suggestion and asks me whether I approve of it, I shall be perfectly ready to say so ; but I do not think any suggestion should come from me. I have my own opinion, but the responsibility is with the Crown, and it is because of that I think you should consider very carefully before you act. Mr. Haggitt: As far as I myself an* personally concerned, your Honor, J have* made up my mind what to advise, and am prepared to take the responsibility of ife rightly or wrongly. His Honor : Quite so ; that is so. Mr. Haggitt: But I shall, your Honor, take advantage of-your Honor's suggestion, and! consult the Attorney-General on the subject before finally deciding. His Honor; There is a oommon jury oase fixed-—r- . Mr. Haggitt; For next Monday. His Honor: You have plenty of timq to consider, Mr. Haggitt: With the understanding that a special day will be fixed, His Honor: We will have no understanding ; you have the matter in your own hands. Mr. Haggitt < Yow Honor, so far as the attendance of witnesses is' ooncerned —that they will not require to attend until Monday. His Honor : Certainly not. The Court then adjourned until Monday- ,