SUPREME COURT.

Otago Daily Times, Issue 161, 22 May 1862, Page 5

SUPREME COURT.

Wednesday,' 21st Kay, 183?. (Before His Honor Mr. Justice Ure.sson.) The Couri <'pg.ied ai. ten uiii.ul-js after ten ; when the i'jlhiw'cg ettoo .m* i-alk-d : pMuOTISC WITH ISTKST. Thomas Kelly alias Thomas Haiinon ; and Richard Burgess, alias Kicluml Hill, were arraigned oa an iv dictment embodying six counts : the Ist count charged the capital offence n;.aiii*t the prisoners for having on the 9th March lust, with revolve!s loade I with powder ami bullets, assaulted Joseph Trembill with intent feloniously and with malice aforethought to kill an-1 murder; the -Jud count charged an attempt to maiiu : the 3rd count, to disfigure; tho -Ith count, to dmble; the oth count, to commit sume grievous bodily harm; and the 6th, or last count, to resist the prosecutor in the lawful execution of his duty, by preventing their legal appreheuThe pr'soners requested the presence of Mr. Prenderswst, b-irrister-at-law, who had been retained in their defence, and declined to plead to the indict ment wheii the following conversation ensued. Prisoner Kelly—l decline to plead until Mr. Prendergast comos. Prisoner Burgess—Mr. Prondergast is retained to defend us, and I decline to plead until ho comes. His Houor —The business of the Court cannot be detained on that account; the matter rests between Mr. Prendergast and yourselves ; (then addressing the lleiistrar, inquired), what is the time now ] ftcgistrar—Twenty minutes past ten, your Honor. His Honor—lt is exceedingly inconvenient that Counsel do not attend in their places when retained ; but the business of the court cannot be detained on these grounds. Prisoner Kelly—But the evidence will be gone into, your Honor. His Honor —You can plead " Not Guilty'; and as some time will elapse before the jury are sworn, perhaps your counsel may come in before tlieevidence is opened. The prisoners still declined to plead. His Honor directed a plea of " JS Tot Guilty" to be recorded. The following jury were then impanelled but not sworn :—John Allen, George Anderson, David Adam, Runnel Hflnry Andrews, Andrew Anderson, Kdward Andrew Emeis, John Andrewa, David Anderson, Adam Begg, jonn Barr, Arthur Brown, and James Aitken. As soon as the above named jurors were seated in the box, Prisoner Kelly said—There was a case tried the day before jesteulay closely connected with my case, and I wish to challenge all the jurors who were on that. When the Registrar proceeded to swearthejury severally, and as they came to the book to be sworn, the prisoner Burgess challenged John Allen and George Anderson, and the prisoner Kelly challenged Samuel Henry Andrews. Jnsb at this crisis, Mr. Prendergast entered the Court, and His Honor addressing the learned gentleman, said : Mr. Prendei-L'ait,- you have put the Court to a great deal of inconvenience by your delay ; and the prisoners appeared quite perplexed what to do. Mr. Prendergast apologised for the inconvenience complained of, and after couferringwith the prisoners said- "I do not think, your Honor that the prisoners will object to the jury any longer." The panel having been then filled up, the jury were duly sworn. The indictment was next read to the jury, and Mr. Howorth, provincial solicitor and Crown prosecutor, opened the case. A highway robbery had been committed at Wetherstone's ; the oflicei-3 were in pursuit of the offenders, and in approaching the tent of the prisoners, one of the ni»n concerned in that robbery, and his accomplice in that robbery, ran. away; but the prisoners at the bar were there in -company with the perpetrators of that otfence. After detailing thu particulars as they would transpire in evidence, the learned gentleman proceeded to call, Joseph Trembill, who, being duly sworn, deposed: lam sergeant of police, and was stationed at Wetherstone's in company with sergeant-major Bracken; and, in consequence of information received on the 9th March, I went in search of two men, who were said to have committed a, robbery. I proceeded to a tent situated about half a mile from Wcthcrstone'B. On approaching the tent, one man made his appearance at the door; he then went in, and returned with four others. Two of them took the direction of Wetherstone's ; the two separated again about n hundred yards from the tent. One went towards Wetherstone's, and the other went in a line with him, at a distance of about a hundred yards. Sergeant Bracken pursued and arrested one, and I arrested the second, and ran back to the tent. The names of the parties were Russell and Davis. On going up to the •^J tent, after arresting the other two, the prisoners jBS Kelly and Burgess ran away. I called upon tliem to ' stand. They were two of those who had come out whea we first approached the tent. Myself and ser-geant-major Bracken called on the men to stand. I told them I wanted them on a charge of highway robbery. Myself and sergeant-major Bracken were partly in uniform. I was in uniform, but I had. a clcak over it. Sergeant Bracken was in the same way. I threw off the cloak. When I first fold them to stand, I did not tell them who I was. They both ran aw;;y, and I pursued the prisoners, when they both stood, find Kelly exclaimed, "If you advance .another yard I will shoot you." 1 had got no arms with me, so I turned and got.a re ; volver from detective Johnston. I then pursued the prisoners again. At that time I had only my shirt and trowsers on. When I came within speaking dis. twice of the prisoners—l mean within hearing of th era —I again called upon them to stnnd, telling them that 1 was a policemau. I had not my uniform hat on. The prisoners then both stood and turned, facing me, and presented three revolvers. Kelly had two, one revolver in each hand. They told me to furn and go back; for, if not, they would shoot me. They ran off ngain. All the time they were speaking to me 1 was trying to run in upon them. At this time, the prisoners were upwards of 120 yards off, btanding on a steep ridge. They were partly up the range, but had not reached its summit. They turned and lan away. I fired after them, with the intent of intimidating*them, but with no desire to hit the prisoners. Mr. Prendergast, for the defendant, took objection to the word "intention.'' Kis Honor directed the witness to explain himself. Witness said, he fired a shot over their heads ; the prit-ouurs then ran on to tho top of the range, where they stood again, and as I was gaining upon them they stood still, presented three revolvers at me, and ordered me to go back. Seeing I would not do so, the prisoners nut forward two or three yards further, when Kelly turned round and discharged a revolver at me. I returned the fire, and Kelly fell, got up afain, and ran on ; while the other prisoner, Burgess, stood giiid-d. There were no other shots fired at this tin:e. I was away from any assistance at the moment. 1 ttipjired on the ranges, and shouted, to see if I could get any help. Detective Johnston enme up in Lalf-an-hour or so, afterwards. I left him to watch them, while I went to the police camp to procure assistance. I s;rw no more of the piißoneis that d»y. On the following morning, I was in company with Sergeant Mi.jur Bracken, in search of them, and about halfway between Wetherstone's and Waitahnna, we observed a tent in a. lonely guliy. Sergeant Mnjor Biackeu remarked that was <i very suspicious looking tent. Mr. Prendergast objected to witness stating what Serjeant Major Bracken said. Witness was corrected, and proceeded : We went up to the tent nnrl found the prisoners in bed, with three revolvers under their heads, and two guns ; one double-barrelled, the other single, loaded with balls, and capped. The three revolvers were loaded, excepting one chamber each fn two revolvers: the revolvers were capped. Sergeant Major Bracken reached the tent .three minutes before I did, and when 1 went up he was standing at the door, and covering thp men with his revolver. I steed at the door until Sergeant Major Bracken put hMiricufTs on them. Mr. Prer.derg.-.sit cross-examined : I saw several holes going up, ant! the prisoners pointed out one hole as Icing'their claim. I did not c-bseive about the tent any of the ordinary implements of mining. I do cot think there was any windlass over the holt- pointed out by the prisor.eis. It v.as only two feet deep. 1 will not swear whether or not there was a pick near it. The first time 1 went to the tent where the five men were there was besides me, Detective Johnston and Sergeant Major- Bracken. The man named Jjevcsey was protcer.tetr in a case tried the other day. Wtt heist cue's was about four or five miles frcrn whore the tent v.as. The direction of the. high range where ] fiicsl over the prifciiers' heads was in sni-h a petition Unit they by turning of!'to ihe light hand might have leu-lied the ttnt. Along the track there were several claims. When I went to the first tent, I had not my uniieim baton. »r.d a poncho clcak. I fired twice, nltcpether. I did not tire a third time, when there •KB.* a flesh in the van, or something, 1 only attempted to fire twice. 1 have not teen Detective Johnston ■fl^^^^jc^-cant-mnior Bracken, sworn, deposed as follows was at '"Wetbei-stoiie's on Satuiday, the 9th rarch but, in cimrany with the last witness. From m^r infuniatiou I n-ctivod of a highway robbery we went tl.wc. On sppusehing the tctt of the prisoners, I IKY, five DjCH ccmiiig cut; v. hen tbe prisoners at the liiileft tie ler.i- nrd inn up the lauge, while two; ttl.er priiiT.eis vent towards WetherfctoWs. I ar-re-ttd the latter. 1 called upon the prisoners at ihe lai toVtcp. At this time, Sergeant Trembill wsb in fiui suit tf them. The prisoners li'iued round, and the pritoner Burgess pi estntcd a revolver at Hergeaiit

Treinbill. I heanl the prisoner Burgess .say, "If you coiiie any further, I will shoot you." Sergeaut Trembill returned to gut arevolvur. I wasdrcssedin regimentals on that occasion excepting my hut. The prisoners ran up the hill, pursued by Sergeant Treinbill. On the follott-iiig morning myself and Serjeant Trembill went in the dirocui'i.i of WiiLaluuia; and about three or four miles from Wetherstone's I saw a small tent in a deep gully. I left my nurse in charge of Sergeant Tremliitl. I ran to the tent. I smasfied the strings ot tha tent door, and saw the prisoners lyiug in bed. I presented, a revolver at them and told them to lie quiet. At this time the prisoner Burgess rose from his bed, and made towards a double-barrelled gun that was near to him. I told him that if he were not quiet, I would shoot him. Sergeant Trembill came up then. I went into the tent, arrested the prisoners, and handcuffed them. On searching the tent I found three revolvers capped and loaded in all chambers with the exception of two barrels ; found also a double and a single barrelled gun, capped and loaded ; a bos of caps; a flask of powder, and a number of balls. The arms produced to-day are the same 1 took possession of in the prisoner's tout. Cross-examined—l did not hear the prisoner Burgess ask either ins c.r Sergeant Trembill if either, of us had a wan-ant, lie could not have said that, without my hearing him. Neither of us had any wan-ant. I fold them in a loud voice so that they could hear, what I wanted them for : and their reply was that if we approached nearer they would shost. Burgess was the prisoner who said that, and Kelly, at the time, held a revolver in his hand. I was some minutes in'securing the other prisoners arrested at the first tent, for they resisted. While I was employed in apprehending those two men, the prisoners now on their trial were running up the range, and Sergeant Trembill was pursuing them. I could not have heard any conversation that inighfc have taken place between Sergeant Trembill and the prisoners at the bar. I called the first tent the prisoner's teut, because I knew that they had occupied it before. I had seen them going on different times towards the tent: but I had never seen them inside it. Re-examined :It was on Sunday morning that I received information of the robbery, and I had no opportunity of obtaining a warrant. There was no magistrate at -Wetherstoue's, and I am not sure whether there was one at Gabriel's. I did not consider a warrant necessary. By his Honor: When, the prisoner Burgess presented his revolver at sergeant Trembill, lie was distant abosit forty or fifty yards. This closed the case for the Crown. Mr. Prendergast contended that there -was no evidence to sustain the first count. The learned gentleman did not think there was any case for the jury on the fiist count. He did not think that the offence would have constituted murder; because the police officers possessed no warrants. His Honor overruled the point. Mr. Prendergast addressed the j tiry in behalf of the prisoners at the bar. The learned gentleman argued that his clients were no more responsible for firing at the prosecutor than were the police olHceis for having fired at the prisoners. The jury were bound to discriminate between the intention and the act. The police not having any warrant, and uofc beinc in uniform, who was to decide but that the prisoners were only defending themselves ] He would remind the jury that English law only recognises two pleas : "guilty," or " not guilty," whereas the Scottish law recognise.3 three pleas :if a case is fully proved, there is a verdict of guilty ;if innocence is established, there is a verdict of not guilty ; but if there exists any doubt on the mind of the jury, then there is a third verdict known in Scotlund, of " not proven." He would ask the jury in this instance, if they conld •'not determine1 in either ease, to reconcile by a verdict of not guilty the doubt which must possess them as to the intention and object of the prisoners when they discharged their-revolvers. His Honor having summed tip, critically analysed the evidence, after which the jury retired to deliberate, re-entering the box with a verdict of guilty. IiARCEXV/. The same prisoners were next arraigned upon another indictment charging them with having, on the 25th February, feloniously stolen one gun, the property of a pcram named John Ulling; the second count charged them with having, on the 11th llareh, feloniously received the said gun, well knowing it to have been stolen. The prisoners pleaded not guilty, and were undefended. The following jury were impannelled : —Sam. Hen. Andrews, Thomas Brebner, Millar Anderson, Andrew Anderson, Fred. Jacob Aldrick, George Anderson, David Bowers, William Alexander, William .Aitken, John Allen, John Hugh Atkin, and Edward Aldridge. Mr. Howorth, the Crown Prosecutor, opened the case, of which the particulars are as follows :—On the 29th December, 1861, John Ulling, the prosecutor, lent a gun to a friend of his ; the gun was stolen from that party on the 25th February, and on the 11th March it was found in the possession of the prisoners, who were then arrested on another charge, and when- taken on that charge, the prisoner asserted that the gun belonged to them. John Uiling was now called to give evidence on the side of the Crown, and had not proceeded far before the prisoner Burgess said, We can only advance mere assertions in our behalf, your Honor. We withdraw the plea, and now throw ourselves on the mercy of the Court. His Honor : Does that observation apply to each of you'! Prisoner Kelly:- Yes, your Honor. His Honor thus addressed the prisoners at the bar : —llichard Burgess and Thomas Kelly, you have both been found guilty of a very serious offence. The Crown might have prosecnted you in such a way that your lives would have been forfeited, and it would have entirely rested with the Judge to recommend that your lives should have been spared or not. You have attempted to resist an officer in the execution of his duty. It would have been a serious offence to have fired at any man without any cause, but it is very much aggravated when that party happens to be an officer in the discharge of his duty. Under these circumstances, however, I will not pass upon you the severest sentence, although I might consign you to penal servitude for some considerable time. I hope thnt what has taken place at these sittings will show the class to whom, I am sorry to say, that you appear to belong, that you and they have no sympathy here. You will find that the public will not sympathise with yon, and that the law will be against you. I am, however, rejoiced to see that on the gold fields of this province there are so many well respected members of society, lovers of law and order. I trust that this chtck will do you both benefit, and that your sentence will induce you to think seriously of the past and of the future. For your first conviction, the sentence of the Court is that you, Richard Burgess, and you, Thomas Kelly, be severally kept to imprisonment with hard labor for the period of three yearn, computing from the 11th March latt, the date of your first committal ; for the second oii'enee of stealing the gun, the sentence of the Courtis that you be each and severally kept in'imprisonment with hard labor for the term of tix calendar months, cumulative on the former sentence. The prisoners were then removed handcuffed, and at five minutes after 1 o'clock the Court adjourned for half an hour. ' Upon resuming, the following case was called :— The Queen, en the prosecution of John Adie against Thomas Goodison. SIIEEP STEAMXa. Thomas Goodison was indicted for having, on the 27th January last, stolen one sheep, the property of John Adie. The prisoner pleaded Not Guilty, and was defended by Mr. Prcnderjrast. The following jury was impannelled : — John Andrews, Arthur Brown, George Adams, David Anderson, David Bowers, John Allen, Edward Aldridge, William Aitken, William Bateman, Andrew Anderson, Thomas Anderson, and John Barr. Ali the jurois not engaged on this trial were discharged for the remainder of the session. Mr. Howorth stated the case, the particulars of which me briefly iis follows:—Somewhere in January !nst, the progenitor purchased liO imiiorted sheep from a Vielorian fleck. Ho took the sheep to the diggings for the purpose nf selling them, and depastured them near some water, about two miles from the ter.t of flic prisoner. In the first instance, he missed ir< in his flock 21 sheep, and he supposed the wh<i!e of that number had either strayed or been i-tolen. PiosfculW placed the remaining sheep under charge of a third party, and went hiuitclf in search of those he I'iid lost. Upon reluming from this first pcnrch, prosecutor ascertained that eleven of the misr sing sheip licit! ri joined the fleck. The following day there were 24 sheep missing from the flock, making in the whole about 30 sheep. Having fiiilcd to trace the inisfing sheep, prosecutor offered a reward lor their recovery. In consequence' of information he received, he went to the tent ot a person named Scully, and then; he found 10 sheep, all resemblingthe cur-marked sheep which he had lost, and one of them with anaik of a very peculiar character; the horns were peculiar ; besides having a mark in the wool on the rump, where it was much shorter thnn on the rest of the body, proving that the s-kin hnd been abrnsed on the passage from Melbourne to Sum-din. By thcise particular marks, prosecutor identified the shec-p iiS his pr< periy. The account given by Scully was that he linil purchased 16 sheep of the prisoner Gcodiscn, and that seme ol them had been slaughtered. Evidence having been taken on tho above particulars, . ' Mr. Prcm!ergn«t addressed the jury for the prisoner, p.nd observed that the only pretence at all that the profeeutor had in bringing this case into Court was because it was held to ie the dictum of the

Judges, a d a miixim ot common sense, that when property is stolen,.and when it is found in the pos-se.-«:oii of another person, then that person might be suspected of having stolen such property, but if he gives a reasonable account for the possession of the property, he must- be absolved from all imputation. The learned iientlenian eitud a ra^e mentioned by Lord Hale, w':o ruled thnt if a horse we re reported to have been stolen in the uiornins", and in the evening/ound in fhe possession of another party, the law presumed that the party in whose custody the horse was found wns liable to be pronounced guilty of the theft, anil yut the authority went on to say he well remembered a caw where a man had been executed on a conviction of stealing a horse, and a f«-w months afterwards auothor person was put on his trial for another offimce, wlicn he confessed that he entrusted the horsa iv question, which he personally had stolen, to the unfortunate man who had been executed innocently. The learned gentleman called John Phillip Armstrong, who described himself as a dentist, an 1 know the prisoner at Carisbrook, in Victoria, for some two or three years, where ha was always regarded as a respectable member of society, and had a very nice interesting family. His Honor (laushins.)—Oh, Air. Armstrong, we do not wish to know about that. Thomas Norton, shipbroker, stated, on oath, that he knew the prisoner at Carisbrook, in Victoria, sumo six, seven, or eight years ago, and had known him for about two or three years, and his reputation was that of being as respectable a man as any in the district. Wisness had frequently transacted business with the prisoner, and always found him honorable in his dealings. Croat-examined —Witness had lost sight of the prisoner during the last few years. George Goldfinch, wheelwright, had known the prisoner for three years at Wellington, in New Zealand, where he had always borne a respectable character. His Honor, in summing up to the jury, remarked that character was of no avail, if the facts, apart from the question of character, are clear. His Honor cited the incident of an esteemed Judge, who in addressing a jury on the case of a young man respectably connected, and who produced forcible evidence as to character, said, '" Geutlemen of the Jury, here is a respectable young man charged with stealing a siddle." Facts were to be the guiding principle to decision, remote and altogether apart from exterior considerations of reputed character. The jury retired to deliberate, and in a few minutes re entered the box with a verdict of guilty. The prisoner said that he and another man who had been working with him purchased nineteen sheep fiom a drover who was passing the place where lie resided at the time. His Honor said the offence of which the prisoner had been convicted was formerly xmuished with death. It was an ottence amenable to heavy punishment in this colony, where the facilities for its commission, as being a pastoral territory were very great. With regard to respectability of character, his Honor apprehended from the presant position of the prisoner, taat had altogether died out- The sentence of the Cxirt was two years'imprisonment with hard labor from 25th February. The Court rose at half-past four o'clock, being adjourned sine die.