SUPREME COURT. — CRIMINAL SITTINGS.

Otago Daily Times, Issue 618, 10 December 1863, Page 10 (Supplement)

SUPREME COURT. — CRIMINAL SITTINGS.

T.UEBDA.Y, Bth December. (Before His Honor Mr Justice Richmond.) His Honor took bis seat.at 10 o'clock. . , SENTENCE.

George Pickup, convicted on Monday last of larceny, was sentenced to 9 months imprisonment with hard labour.

HORSE STFAT.ING,

Thomas Frost and John James were charged with stealing a horse, the property of Robert Fox, a miner, living at the Sand Hills, on the Shotover.

-Mr Barton appeared for the prisoner James, and Mr Wilson for Frost.

The Crown Prosecutor having stated the case, Robert Fox said that he purchased a horse at auction in Queenstown, which was used by himself and mates as a packhorse for some weeks. The horse becoming out of condition he turned_ him out, and on going to seek him after a period of eight or nine days, he could not find him. He spent two days in an unsuccessful search, and on the third day, a Tuesday, he found the horse in Queenstown, at the Camp. He was cross-examined ■at some length by Mr Barton.;

Hay Henry Ritter, who keeps the Ten-mile Accommodation House and Store about 12 miles from the Arrow, knew the;prisoners. About 9 o'clock on the morning of Saturday, the 3rd October last, the prisoner James called at his store and offered him two horses for sale, the brands of which he gave. They ultimately made a bargain for sixty-six pounds and the saddle, but afterwards he gave a pound for the saddle, and on the ■ payment of the money, he gave up two receipts as his title to the horses,, purporting that they had been sold to John James, untfer date one the 20th March, 1863, an' the other 3rd June, 1863. In consequence of information the witness received, he examined the receipts and from their appearance he concluded they were forged as they did not correspond with the account the prisoner gave of the purchase of the horses. The prisoner had stated he was going to the I'unsta.n in company with the attesting witness to the payment of the money, but witness overtook him in the opposite direction going to the Arrow. He could give no satisfactory account of his change of purposp, but made a statement that the distance was too great to walk, and that he had another horse at the Arrow which he proposed riding. At the time he overtook him he was carrying the saddle on his head which was placed on %vitness's horse, who arrested him over the Arrow River. He saw him at the Arrow Township aod made enquiry again as to where the prisoner purchased the horses. He said one was bought at Arthur's Point and the other at Caversham. He had written out the receipts himself, as the sellers could not write. Witness asked him to read the receipts, -yhich he said he could not do. He could write but he could not read. He tried to escape when he found the witness's intention was to place him in custody, but was prevented. Richard Barrett, a detective constable, proved arresting the prisoner ou the information given by Ritter. The receipts were handed to him, which did not correspond with the account gives of the purchase of the horses. The prisoner could not read the receipts. He : (the witness) was riding one of the horses to Queenstown, and the prisoner James the other, in his custody, when the latter, shedding tears, said, " I was made a tool of and will tell you all, I did not know the horses were stolen."

Mr Wilson objected to any^ statement behig made which had a teadency to criminate the pris mer Frost.

' The Crown Prosecutor argued that the whole confession should be stated, the Court warning the jury that what was stated could not be evidence against the other prisoner.

The Crown Prosecutor did not press the point. His Honor explained to the witness that in his answers he must avoid statins; any confession that did not affect, the prisoner James' own case.

The witness stated that the prisoner said he was to. have taken the horses to the Dunstan market. He met the. prisoner Frost at Arthur's Point township, near a "stockyard, and after some conversation he went with him, in company with Inspector Morton, to the.Camp. The bay horse was standing outside the Camp door, with a saddle and bridle on. In. spector Morton asked Erost if he knew to whom that horse belonged. He denied any knowledge of either horse, saddle, or bridle, but hesitated after a question or two arid acknowledged he might have seen it. They provided the prisoner Frost with psn, ink, and papers. ,

Mr Wilson and Mr Barton objected to the evidence as not being relevant to the charge. Mr Howarth said it was relevant, as the handwriting of the letter written by'the prisoner Frost corresponded with that of thi receipts. Mr Wilson and Mr Barton objected to the evidence of comparison of handwriting with a document hot b"aring upon the case as contrary to the law of New Zealand ; and further, that it was not competent by the rules of Court to compare those receipt 3 with a document not in. evidence.

His Honor ruled that as it was a doubtful point that unless the document had reference to the charge he would give the prisoner the benefit, and not admit it as evidence.

The Crown Prosecutor would not press the point. The witness said the prisoner first denied the receipts being in his handwriting. On being taken into custody to Queenstown, the prisoner James said, in his presence, he was the man who gave him the. receipts and the two horses, with instructions to *ake them and sell them at the Dunstan, and he sKould have a portion of the money. _ Frost de- ied the charge. Pox, on the 6th October, identified the black horse, and daimei him as his property. John Miller, butcher, at Arthur's Point, had known the prisoner Frost a lonsf time, a :d James about three weeks previously to his being arrested. They vvero both in his employ, but not at the same time. Frost was a dairyman after leaving his employ, but continued to board and lodge at his place until arrested. Frost kept his books. He would not swear to Frost's handwriting." The receipts produced were, to the ibest of his belief in his handwriting. The witness's handbook was produced, from vhich two leaves had been torn, and the receipts on being tried exactly fitted with the remaining portion in the book. The book was kept at the heal of the bed, under the pillow, in the place where Frost slept. Both prisoners had free access to it. The witness identified a bridle produced as one belonging to himself, of ■which Frost had had th°. use for some time.

i Thomas Burns, a miner, proved lending the saddle produced to the prisoner Frost. He did not see it again until he saw it in the Camp. ■Inspector Morton proved arresting the prisoner Frost, and confirmed the evidence already adduced. Mr Barton addressed tEe jury at some length on behalf of the prisoner James, and Mr Wilson for "the prisoner Frost

His Honor summed up and pointed out the bear-

Jng of the evidence on th'a charges figslasi; the two parties. He remarked that the witness Bitter had behaved with great prudence in the matter and his conduct was worthy of commendation.

The jury retired for" above an hoiir and on returning, pronounced both prisoners guilty, but recommended James to mercy on account of his youth.

HORSE STEALING

Thomas Frost was charged on a second indictment with stealing a hors?, th? property of John Dunn andotheis on thrf tkh October last.

Mr Wilson defended the prisoner

The Crown Prosecutor stated the case, which was substantially, that Dunn, a miner at Arthur's Point conjointly with himself and hi 3 mates, bought a bay horse for which they gave L2O, which they used for packing their winter's provision?. He fell lame and they had to turn him cut. He saw him about three weeks after that at Crosble's point, and did not see him again until he was in possession of detective Barrett. The witness Dunn on examination described the brands. •

Detective Barrett said that he saw the "horse in a stock yard near which the prisoner was standing and inquired by what authority he drove that horse into the stock yard. He replied a man na-asd Morton, or some such name, had ordered him to drive him in. On examination of the horse by the brands given, the witness found it did net correspond with those of the horse which he had mentioned.

The prisoner was taken to the Camp, and arrested on Sunday, the 18th. John Dunn identified the horse.

George Tewlett. a general dealer living at Frackton, said he l>ad known the prisoner for some time. About eleven months ago lie lost a bay horse branded P near ribs, a bang tail, and a white face. About a month before, he saw the prisoner in custody at Queenstown ; he saw him at the Station Ferry Accommodation Hous«, and told him he had lost a horse, and if he could find him he would give five pounds for driving him in. The horse outside the Court was not the horse.

Mr Wilson cross-examined the witnesses, and afterwards addressed the Jury on behalf of the prisoner. He argued that the horse was ridden in by mistake, and that all the evidence tended to prove it. There was some slight correspondence between the brands given him and the brands on the horse, and therefore, he might easily have been mistaken. His Honor summed up the evidence, and stated that he concurred with the opiuion of the Counsel for the prisoner.

The Jury, without retiring returned a verdict of not guilty. .. '■ .

SENTENCES.

Thomas Frost, committed in the previous case of horse-stealing, was sentenced to two year's imprisonment, with hard labor.

John James, on the same charge, on the recommendation to Mercy of the Jury, was sentsneed to six month's imprisonment, with hard labor.

FORCIBLE ENTRY.

Charles Robert Swyer was indicted for having, with twelve or more other persons, on the 19th November last, unlawfully, violently, forcibly, injuriously, and with a ftrong hand, with sticks, stones, swords, picks, axes, spades, and other weapons, entered into and expelled, moved, and put out George Green from a coal shed in the rear of the Custom House, and that they did still keep him out of possession of the same. Mr Howorth stated the case, and said that the prisoner had been complained against, before the Resident Magistrate, fur making a forcible entry info, a coalshed in (he rear of the Custom House. It was a maxim of law that no person had a right to exercise any right he might possess by force ; as such a course might tend to a breach of the peace. To do so was a misdemeanor at common law. Statutes had been passed with regard to forcible entry, to prevent persons attempting to obtain forcible possession, -which provided for restitution of the property; but the Court at Common Law made no restitution, so that the advantage given by the statute law was taken from the complainant. This complaint was one at/ Common Lnw, so that the complainant would not be entitled to restitution of the premises. The shed and stage were the property of the Provincial Government,, and had originally extended some distance into the Harbor. Under an agreement, aMr Lewis held them for the purpose of housing coals, under a lease for two years.

-Hjs Honor said : What do. you. mean by the Pro* vincial Government ? I know what it is in the newspapers ; but I do not know if. here at all.

Mr Howorth. —The Superintendent, your Honor. By the reclamation going on in the Harbor, the place hadbesn so filled up as.-nq longer to be capable of being approached from the water. -He would not say what the defendant purposed doing, but he believed it was intended to destroy the stage in front of the shed. ■ The engineers employed by the Superintendent had no right to go there for that purpose, but he had done so. He would not occupy time in stating the facts, as they would be best learnt from the evidence.

Mr Barton followed in a few words,

George Green, examined by Mr Barton, said he was a sheep farmer resiling in Dunedin, and living in Princes street. He was at the Clutha Coal Shed, at the back of the Custom House, on Thursday, the 19th November last, and was there nearly all the day. There was a stage there which stood on piles. The shed covered only a part of the stage. He had been in possession ovpi; twelve months. He saw Mr Swyer and Mr Cunningham that day at the Oiutha Goal Shed. Some three or four persons were .-with them They had implements with them. He saw Mr Cunningham first, and he went with him to Mr Swyer. The witness told l^r Swyer he would not allow him or anybody else to remove the shed. Mr Swyer said he had instructions to do so, and he should do it. Witness said he should resist. Mr Swyer said he should be there at two o'clock. About a quar-er p^.st he arrived and nineteen or twenty men with him, all armed. Witness was standing on the stage and another person with him—a laborer. He told Mr Swyer he would not allow the men to remove the platform. That gentleman ordered the men to go on, and they began to remove-a plank. "Witness stood upon it, put his hand on one of the men, and took the axe out of his hand. He turned to Mr Swyer and said, " Mr Swyer, you see I obstruct the3e men, I will not allow you to remove this." Mr Swyer said " that will, not do for me—go on with your work." Witness asked him if he wanted him to strike a; man with the axe. There were bags ot coals on the wharf, which they removed. Witness got on to the weighing machine, and said you shall not remove this. Mr Swyer said "remove him and all," and two men took hold of it and lifted him and the scales. He began to wax warm, and thought it best to get away, so he stepped off the machine. They removed all the platform. He believed Mr Swyer was not there all the time, but did not exactly know, for he went for a policeman, and saw one in Princes street, who refused to interfere, and recommended witness to get advice. His son was present, and setting out of temper, and he thought he had better go away. He wanted to assist witness in putting the men off, when Mr Cunningham put himself in an attitude, saying in a jeering way, "Oh! is that what you mean 1" Witness made no further resistance.

Cross-examined by Mr Prendergast: He began to mist as ro'on as Mr Swyer came up. He took hold of the axe a man was using to rip up a plank on wh'ch he was standing. His saying he would obstruct Mr Swyer's men had reference to a conversation he bad had before. Mr Swyer never told him if ha refused to give up possession he should have to report him to the Government or the Superintendent. He nevev acknowledged that Mr Cunningham had produced his authority, Mr Barton objected to the cross-examination as Mr _ Cunningham was only discharged before the Resident Magistrate on condition that he should not appear as a witness.

Mr Prenrtergast said there was no such understanding. Mr Cunningham having been discharged by the Magistrate as acting under orders.

Cross-examination continued: Mr Swyer never asked the question in Ms hearing as to the production of the authority. He put the axe carelessly down—it might have been close to the man's hand. The man resisted so far as not to go away at his" bidding. He did not say to Mr Swjer, "If you wish to assault me come on to the stage and do it." They had tried to make him say so at the Magistrates Court, but he would not. rie said "Do you wish to insult me ?' meaning by that to "assault" him. He did say neither he nor any two of them dared to remove the wharf. He was certain that they were not removing the machine when he jumped on it. He was sure he was canted on to the stage, but he did not canter off. Possession was given to him of the premises by Mr Lewis under an agreement for two years. His son carried on business there in the coal trade.

Re-examined by Mr Barton : His son paid no rent, but carried on business there on sufferance. He had no notice that it was intended to pull down the place. By the Court: The hollow ground underneath the stage had not been filled up on the 19th ult. It was filled up on three sides

Henry Thomas Green, son of the last witness, confirmed the evidence of his father.

This closed the case for the Crown. His Honor said he was doubtful whether there was any case to go to the Jury, as the whole proceeding seemed anything rather than the forcible entry contamplated in the statute. ,

Mr Barton was heard m support of the indictment, and argued that it was not necessary that there should be distinct apprehension of personal injury in case of a man's not giving way, but it was sufficient that there was an entry forti manu. The simply goins with a strong body of.men. was sufficient to sustain the indictment, but in one instance not only had violence been done to the property but the person

■wiftK-t^woigbln^ma'ahineW'MtQr^euWeyetaliai-'^-awajr tagetlier, ■- . ~- _ Mr Prendergast replied that the ca<"e must fail on three legal points. There was not sufficient evidence otfortimanu to support the indicttnent, for it had been held that the presence of numbers where no breach of the peica was committed was not sufficient to establish forcible entry. Violent acts when unaccompanied by riot were not always illesral; even pulling' tha thatch off a man's Ji-j U = e , he r.t the time bom? in it, was not held to b« forcibly entry. There must ba something: more than trespass. Mr Swyer repeatedly sai.l he wished Mr Green to do something that would tend to put him off the premises, and he he had not done so. Pecondly • the prosecutor was not the person in possession, but hia"^ ton, who had by his evidence stated that none but himself used if-. And tWrlly, thai, there was not that possession which the law contemplates in the acts lhe indictment alleged that forcible entry had been made into the shed and platform, and the evidence was only'to show entry oa to the shed. Mr Barton replied. At a quarter-past seven o'clock the Caurt adjourned for refreshment to half-past eight o'clock, Oa re-"*' assembling1, ;?V-

Mr Preadergast addressed t'.e jury for the defence. He urged thai there was no eliim made under the statutes by which reNtitution could have beea obtained ; for the prosecutor knew perfectly well that the »it!e 'to the premises was bad. In orc i er to sustam the indictment there must be a breach of the peace, but there had been no breach ot the peace. It must be clear froru the evidence already before the Court that Mr bwjer must have used words to the effect that if Mr Green determined to obstruct the proceedings he should report the matter to the Government.' But no such thing as forcible resistance had been made He thought from Mr Green's conduct that all he had intended to do was to make a ca«o • but if all went ia an orderly ami quiet manner it was impossible to say there had been a breach of the peace. *■ . • -

Henry Carber, foreman of the Provincial Government Carpenters, said, a considerable v quantity of earth had been placed nnter the staginc which Pf* to «.e. 19th November, was anS to the' Clutha Coal Warehouse. He went with Mr Swyer there, shortly after two o'clock, on the 19fch November, who gave instjuction that the planking on the Btiginir. should bs ripped up. Ten to twelve men went on to the staging. Mr Green stood by the door of the shed. He told the* man not to take it up lie heard Mr Green and Mr Swyer in conversation with Mr Cunningham. Mr'Swyer asked the latter if he hao shown Mr Green the authority Mr Cunningham replied he had not produced bis paper. Mr Green said he had seen that. About, one third fj hi,Pl \l T m \f beea taken "P^lien Mr Green laid his hand gently on a man's arm. took hold of hig axe, and said ;< Lean off that.' He turned to Mr Swyer, and said. " Is that obstruction enough, Mr Swyer?' The latter said, '-Not enough lor me" Vho It* Tt me *° take an axe and chop a man Mr Green said "Send your men away. Mr Swyer, and I'll |oon do for you ;' Mr Gr,en; s son was ex! cited, and wanted his father to help him to put the men away, who refused to do so. Father and srn went away, and during the absence the p'anks were all removed, and the coals placed on the other side of the SJ, V tS 8 men .KoinS towards the weighing machine, Mr Green senior, stood upon it, but finding the men determined, he quietly stepped down There was no noise nor violence, but ail was very quietly done. Robert Thomson, overseer of building. WO rks at Hell Hul, gave evidence to the same efiect. James Patillo, a carpenter, was taking up one of the planks,-and after he had been at work a quarter of an hour, Green took the axe out of his hand, and told him to derat. Witness made no resistance, but he gave him the axe back a»-&in ,

John Black, police constable saw some persons removing the platform of ths Coal Shed, but aunre-hended-no one. 11

Mr Barton addresssd the jury-for the prosecution and said it \vis not, so n?iuh a contest between Mr Swyer and Mr Green a3 between the latte<- and the Provincial Government. The duty of the jury therefore was a very delicate one, for fche Government had no right whatever to do what would be wrong in -in individual. There was a legal process by which possession of the premises midif have been obtained, and if they'had- takea possession "by a process that was illegal, the jury Lad a much more delicate task than ordinary to perform. It was attempted to get out of the transaction because Mr Swyer had authority from the Government for the course lie had token. Mv Prendergast said lie had taid no S'icli thing. • Mr Barton continued, and observed that no parly had a right to resist a due process of law no matter by whom it was ordered. As an illustration, a respectable hotelkeeper in Maclaggan street received from the City Magistrate a pretty considerable dressing because he had resisted a teareh of his house by the police after one had been already made to the inconvenience of iiis lodgers. Much of th evidence was incredible, it could not be believed that Mr Green had given the axe back to the workman quietly after having oncetaken.it. He was-willing to" state the case on the evidence for the defence. With regard to the law of the case, even if a man were to chop a portion of another m-uTs house down, and when the person in- possession went out the assailant ran away that would be forcible entry. His' Honor could hardly consider that would be a forcible entry.

Mr Barton cited authorities, shewing that breaking in doors or windows of a dwelling house, though the dwelling-house were empty, would be in law a forcible entry. The large force employed by Swyer was evidently engaged for the purpr.se of intimidation He asked the jury not to set the example that a high Government official should be allowed to break the law— that the Crown should be allowel forcibly to enter where and when they liked, while private individuals should be compelled to abide by the usual process. No one but the Sheriff had a legal right to break open a door. If the Provincial Government had a right to the premises, they could have turned out Mr Green by an action of ejectment. He had taken the premises of Mr Lewis, and if he allowed himself to be turned out by the Government and other parties that gentleman had a right to complain. Green had no right of action for damages agaiust Lawis, but he had a right to protect the property of the^essor, who might demand the premises to be restored to him in the state in which he let them. He asked a verdict on the facts of the case as well as on the law; and it was for them to say whether Green should be left without a remedy, and whether the Government should be permitted to do what none of them would be" allowed to do. •

His Honor in summing up, observed it was not a question of the right of Mr Green as asainst the Superintendent. The question was, whether th° peace had or had not been broken. If Green had been injured he had his action aoainst the Superintendent or against Mr Swyer. The proceeding would give no satisfaction to Mr Greeu and the question was merely one of public j ustice ¥V ith regard (o oppression of initviUuds by the Government, that was impossible under the present constitution. The question realty, waa whether forcible entry was made or not and 'that was defined to be whenever a man either by his behaviour or speech at the time of his entry, gave th>se who were in possession of the tenements which he claimed, reason to fVav that lie would do them some bodily harm if they would not pive them up to him, and that whether lie came accompanied by an unusual number of servants or by-plainly employing parties to use force" agamsfc those who should make resistance so as to causo a breach of the peace It was further argued that violence done to the property itselt might be proof of forcible entry. In support nfihat opinion, violence need not nece'sarily be done to a man or his person, but by forcibly enteiinff the bouse or by breaking open the doors. He was not prepared to say that destroying the platform constituted forcible entry. All the facts were before them. The game of the attacking party was to avoid using force, fcr when Mr Green appeared on one part of the platform, they left off working there and picked it in pieces in other parts. They rather invited force on the part of Mr Green than offered it to him. There was one exception in regard to the weighing-machine, where the men inclined it at such an angle as to cause Green to step off Tho jury must consider whether it wa?" fear £ *ai ,>mf e i • resis£ nes on Green's part;that led to his conduct. To say the least of it. h° could not say it was a well-jud-ed proceedW' for although no breach of the peace had occurred ft was calculated to provoke it. And he couli nst see why legal means might not have been adopted to obtain r.ossession of the premises. The question was whether forcible entry had been imde or not. There was evidence-in favor ox arriving at that 3onclusiou, but it was not conclusive, and it might be they mieht find a verdict to the contrary. The Jury retired at 10.45 p.m., and at ten minute* past twelve they returned a verdict of " Not Guilty " and added a rider that the course taken by Mr Swver was open to censure. " The defendant was discharged. His Honor thanked the jury for their attention to the business of the Court, and discharged them from further attendance. The Foreman asked his Honor if tkere was any remuneration allowed to Jurors. His Honor was afraid not, but recommended -m apphoafcon to the Treasurer. He certainly thought the poorer class of Jurors should not be subjected to such loss as they incurred by their attendance, but all his brother Judges did not coincide with his views though Mr Justice Gresson concurred with him 1 atTUoSSk.^T ed toMo"day ' thG 14"st '>

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