SUPREME COURT. CRIMINAL JURISDICTION.

Otago Daily Times, Issue 159, 20 May 1862, Page 6

SUPREME COURT. CRIMINAL JURISDICTION.

EIGHTH DAY.— May 10th, 1862.

(Isef->re His Honor Mr. Justice Gresson.) The Court was opened at 10 precisely, when the following case was called on for trial :— HIGHWAY R'IDBBRYY „' Charles Cliff, was indicted for having, on the 28tn: April feloniously assaulted Charles Cooper, putting, him in bodily fear of his life, and stealings purse. _ The prisoner pleaded Not Guilty, and was defended by Mr. Pienderga-st. Mr. Howorth. Provincial Solicitor, conducted the case on behalf of the Crown, and called Charles Cooper, who, being sworn, depose!: Lam a. corporal in the 70th regiment. I remember the morning of the 28th April last. I was then returning from Cnversham to the military barracks, and when about 200 yards from Captain CargiU's hjaHQ, the prisoner appW.iched from the right hand side of the road, and said to me, " You b—, I'll take it out of you !" I said to him, " What's the matter, comrade," or words to that effect, when another man came up from the left hand side of the road, caught me by my two arms, and placed his knee in the small of my back. The prisoner then put his hand into my right hand trowsers pocket, anil took out my purse, containing a gold watch .guard, a gold ring, one £5 note, one £1 note, and.three shillings in silver. He then tried to take my watch and chain from my side pocket. 1 raised my'left.arm, and cried out "murder," when the prisoner struck me a blow with a stick upon the back of my head. The other man then gave me a shove, as though trying to throw me on my face. They both then ran away in the direction of the swamp. I walked on until I came to a tent,* about 120 ynrds nearer to town than the spot where I was attacked. 1 tried to get in by calling out at the door, "Is there auv one in '{" but I received no answer. It was a framed"building, covered with canvas. I have since ascertained that the premises belonged to the prisoner. It was bright starlight at the time. Mr. Prendergast commented on the discrepancy in the police deposition and the prosecutor's present statement. In the depositions, the .prosecntor had said that it was a dark night, but starlight. The learned gentleman then proceeded to address the Jury sit considerable length, and characterised the case as being one of the most extraordinary that had ever bee.i brought into a court of justice. His preconceiveef notions of the British army were totally different from the conception of such a gallant, distinguished, aad walking corporal, as the prosecutor; whereas his client was a respectable tradesman in Dnnedin, carrying on business either as commission agent,merchant, or cordial manufacturer. Thomas Ituuatt was now, placed in the witness-box, and having been sworn, deposed that, he was in the service of the prisoner, who was a manufacturer of cordials; that about- four o'clock on the morning of the 28th April, he was in the same tent as the prisoner, who lose from his bed to go outside, where he remained for about ten minutes. Witness was positive that no knock was given at the door, or window: of the building, aud if any had been given he must have heard it. ' . . Re-examined by Provincial Solicitor. Witness would swear that he never held the prosecutor while the prisoner rifled his pockets. He never rose from his bed during any time of the night; and not until lie got up to dress'himself in the morning. His Honor here remarked that the present was a mostsingular case, mainly relying upon the evidence of one witness, and it was necessary, before conviction could be obtained, that the case for tho.prosecution should be proved beyond reasonable doubt. Mr. Howorth considered that there was a case to go to the jury, and said he should address the panel on the merits of the evidence, , Mr. Prendergast, in that case, expressed, his determination to call evidence as to character, and immediately called John Tennant, and..: Robert Broug.iton, but neither of those persons responded. Mr. Howorth then addressed the jury. ;■/, _ : His Honor summed up the evidence, expressing his gratification now that the case had proceeded to its present advanced stage, as it was quite possible that, from his Honor's previous observations, a wrong impression . might have taken possession of the Court and of the public mind. His former remarks were not intended to convey the remotest reflection against the character of the prosecutor, whom his Honor considered to be a- respectable man and competent witness. But, in a case where there were only two witnesses examined, and where the evidence was so conflicting, it was absolutely necessaiy that there should be no reasonable doubt where the. question relied so forcibly upon personal identification. The jury then retired to consider their verdict, and upon re-entering the Court, returned a verdict of "Not Guilty." ~ . ' ■' The prisoner was then discharged, with a caution from his Honor to exercise, in future, greater circumspection. ; . . Robbery prom the Person. John Brown was indicted for having, on the 4th May" last, feloniously stolen a purse from, Charles Sampson. The prisoner pleaded ''Not Guilty." Mr. Pi endergast applied to the Court for the delivery of certain moneys, found upon the person of the' defendant at the time of his arrest. The sum of £30 was found in his possession,, and only £2 was alleged to have" been stolen. The learned gentlemen now made formal application for the delivery of £19 12s, to be handed over for the purpose of the prisoner's defence. "' ' -." '' .' ■■ •. ■ His Honor made the order accordingly. : - Mr. Howorth, Provincial Solicitor, conducted; the case onl behalf of the Crown : and called .-'..■ ■ Charles Sampson, a quarryman, who being sworn, deposed : that on the 4th May inst, he. went to the Crown Hotel, where the prisoner was employed as a waiter; that when he entered the house, he had three £1 notes, and four sovereigns in his purse,? and after he had been there some time, he fell asleep upon a chair, from which he was aroused by a constable ; and in consequence of what the policeman.communicated to him, he put his hand into his pocket, and the constable left; prosecutor went out shortly afterwards and took a walk, into the Arcade, where he examined his purse a second time; when he missed a sovereign and a £1 note. He: then returned to the Crown Hotel, aud told Mr. White, whom.prosecutor believed to be the landlord, that he had lost £2, Mr. White" then accompanied the prosecutor to the police station. Cross-examined —Prosecutor entered the Crown Hotel at half-post four o'clock, in company with some of his mates. There might have been about three or four people altogether, and about half a dozen rounds of brandy brought in. Prosecutor was half seas over when he fell asleep. It wa9 about ten o'clock at night that prosecutor re-examined his purse in the Arcade. lie was not aware that any of his guests on that occasion were present in Court to-day. A person named Jenkins was now sworn. This witness deposed that on the date mentioned in the information lie happened to be passing down a right-of-way between the Steam Packet Diningi! Rooms and the Crown Hotel, aud casually looked in at a window of the last-named Inn, which window commanded a view of the bar parlor. lie noticed the prisoner inside -the room. He was putting his left hand into the prosecutor's right-hand trowsors' pocket. This was about nine o'clock, when; the prosecutor was sitting upon a chair with his head leaning upon his hands on the table. He appeared to be asleep. Witness saw prisoner take his hand out of prosecutor's pocket with the purse in it. ;He then looked in the prosecutor's face, and walked round to the opposite side of the table facing the prosecutor, when he opened a portnionnaie, and witness could perceive that there were some sovereigns in it. The prisoner closed the portinonnaie and returned it to his pocket. Upon this, witness knocked sit tho window, and called prisoner outside ; and witness told him that if he did not put the purse back again, he should call a constable, and prisoner replied—" All right, sir, I'll do it immediately." Witness remained outside for some time after prisoner had returned to the room. Re-examined : Witness had been employed at the Crown. Hotel, in the capacity of waiter; and had lieen induced to leave that situation in consequence of Mr- White having assaulted him. Constable John M'Nab proved, that in consequence of a communication made to him by the witness Jenkins, lie went to the Crown Hotel, where he found tbe prosecutor in a state of stupidity from the effect of drink. He subsequently arrested the prisoner, and upou searching him found him in possession of two £10 notes, one L 5 note, seven sovereigns, a halfsovereign, a shilling, and two sixpences. The witness Jenkins, at the request of a juror, was re-called, and in reply to certain questions said: — The window through which he saw the prisoner, abstract prosecutor's purse was not quite five feet from the ground. Mr. Prendergast now addressed the jury in behalf of the defence, and after commenting on the solitary evidence of one witness in support of the prosecution, ..remarked upon the position which the prosecutor ' formerly.held in the Crown Hotel, and it was quite consistent with the theory of the case that, admitting the statement of the witness Jenkins to be correct, the prisoner might have . taken the money to preserve it tor the prosecutor. The"learned gentleman then called Thomas King-Weldon, -Sub-Inspector of Police, who, being sworn,'.stated that he recollected the prisoner to have been a'constable in Melbourne. He did not remember anything adverse to the prisoner's character. _ * John Black, sworn, said he was police sergeant in the local constabulary, and that he hail known the prisoner for about eleven years. When witness first became acquainted with him, he (prisoner) belonged to the Irish constabulary; and he had been personally .acquainted with him for the period of four years; and

six months". Since then witness had known him for] three years as a-member of the Victorian police force. He had never known or heard of anything against the prisoner's character. Cross-examined by Mr. HnworHi : The prisoner had been discharged'from the police-force for having been under Ihe'inflnonce of drink. • His Honor summed.up. the evidence, and the jury retired to deliberate : re-entering the Court shortly afterwards with a verdict of Guilty. _ The prisoner in reply to a question from the Associate, said thatiiis age was twenty-nine. His Honor, in addressing the prisoner, said he regretted to find a luau in his present position who had apparently borne a previously good character. For himself, he did not entertain any doubt of the prisoner's Kuilt, and apprehended that he had been brought into his present trouble through drink, the prolific source of crime in the colonies. His Houor would not lose sight of the previous character of the prisoner, and in sentencing him on this cuuviution, would impose such a term of imprisonment as might wean him from habits of intemperance, and cause him,, after his liberation, to be converted into a sober member of society. The sentence of the Court was that he be.kept to imprisonment and hard labor for six calendar months, dating from the 6th day of May instant. ■ At ten minutes after two o'clock, the Court -was adjourned for twenty minutes. Upon resuming at half-past two o'clock, the following trial was called : — EMIIEZZLEMENT. Adolphe Beissel was charged with having, on the 15th March, embezzled the sum of £1 10s., the property of his master, one Louis Cmuicr'; the same prisoner was further indicted with feloniously receiving on the 22nd March, another sum of money, to wit, £1155., also the property of Louis Cramer ; and he was again indicted with/having on the 29th March, feloniously embezzled a third sum, within six calendar months, to wit, the amount of £17s. 6d., also the property of Louis Cramer, The prisoner pleaded not guilty, and was defended by Mr. Proudeigast, with him Mr. Ward. All the other jurors and witnesses were discharged until Monday next, at eleven o'clock in the forenoon. | Mr. Prendergast now took technical and legal objection to the indictment, and argued that there ought to be some peculiarity given to the allegation. His Honor observed, that the sums and dates were both mentioned, but would wish to hear the specific object of the learned counsel's application. 'Mr. Prendergast replied : That his application was, two ot the charges might be struck out, as they were not set forth with sufficient peculiarity for the prisoner, in his defence, to answer. His Honor ruled the application, as the indictment met tlm law'of the case ;at the same time .the Court had no fault to find with the application itself. Mr. Howorth, Provincial Solicitor, opened the case for the prosecution, and in meeting Mr. Prendergast "s. argument, observed, that each of the counts containe'l in the indictment constituted three ilis 7 tinct offences at common law. The, learned gentleman went on to explain, that it was not long ago, when prisoners were charged with the offence of enlbezzlingthe moneyof theirmiistcrs t thc.general excuse raised, was: "True they had received the money, and they could give no account of it through mistake or inadvertence ;" and in former days it was ruled," when one case was identified not to go into any other matter. But the Legislative, in order to prevent the ends of justice being-defeated by such subterfuges, and on such pleas, made it legal to insert upon the face of. an indictment three distinct acts, it occurring' within six calendar months. This course was taken for +,he purpose, ot obviating the defeat of justice by the successful issue of a plea to one charge, the Legislature inferring that if one allegation of embezzelment were overthrown by the plea of inadvertence, it was improbable that such iv plea would be sustained in two or three instances. - Louis Cramer being sworn, deposed, that he was a baker in Dunedin. The prisoner had been in his employ, and it was part of his duty when in witness' service to-receive money payments for bread. In consequence of not receiving so much money ;is he knew to be due on outstanding accounts he visited some of the customers, and ascertained from a personVnained Downes that he had ]aid from time to time sundry accounts into the hands, of .the prisoner.' Downes produced his receipt book to witness, wherein the prisoner had signed for certain sums in payment on the various dates specified. - ..-.'.'■"■ Cross-examined : The prosecutor had been long acquainted with,the prisoner's mother.* His,'p\yn" wife occasionally attended to the business. He did not know a person of the name of Pinkies, a linendraper, residing1 in Rattiay-street. The prisoner had on one occasion told prosecutor that he kept his accounts in an irregular manner. He had been some ten months a,ao confined to ■ his bed for about siz weeks or two months, with a broken leg, and during that time his accounts were kept by Mrs. Cramer. He did not recollect the prisoner's parents having ever offered him £50 to sqnare accounts., J There had never been any conversation between the prosecutor and prisoner about shouting in public houses. Prosecutor declined to say whether he sold wines and spirits on his premises or not. He did not remember ever having told the prisoner that if he spent a few shillings with some of the houses in town, the owners of them might visit him, and lay out money in his business. The prisoner ,at one time confessed that he had entered wrong names in prosecutor's books on purpose, and admitted that he had received sums of money from many customers -which he had not paid over. . * (An account book was put in as evidence, but the entries, were so incongruous and obscure, that His Honor.remarked he could not understand it.) Thomas Silvester Downes, being sworn,proved that he had taken bread from the prisoner on several occasions.—That on the loth March last he paid prisoner the sum of £1 10s. for bread. On the 22nd idem, he paid him another amount of £1155., and on the 29th idem a third sum of £17s. 6d., also for bread supplied. Bach of these payments were receipted in witness's boiks in prisoner's hand writing.; . \' ; Mr. Prendergast, in the first instance, submitted that there was no case to go t» a jury, but the Court ruled the contrary, and . The learned gentleman proceeded to address the jury, reminding them that, statements and confessions made, by prisoner should; always be received with great caution by jurymen^ He dwelt with trenchant and sarcastic humor upon the unsatisfactory condition of-the;. prosecutor's 'books; the-prosecutor did hot appear to remember any incidents which transpired in the ordinary transactions of his trade; he did not seem to know his customers ; his customers did not' appear to know him ; and he (Mr. Prendergast) believed that he did noti know his business. The learned gentleman concluded a forcible speech in behalf of his client by entreating the jury to weigh well all the evidence in the case before them, as by a verdict of conviction they might consign a young man, but recently married,well-connected, and of previous good character, to the dismal associations of a felon's cell. His Honor having summed up, the jury retired to deliberate ; and re-entered the Court-house with a verdict of " Guilty." " His' Honor passed ft sentence of siz calendar months' imprisonment in Her Majesty's common gaol, to bear date from the 23rd April, 18b'2. The Court rose at twenty minutes to six, being adjourned to Monday next, at cleveu o'clock in the forenoon.