SUPREME COURT.—CRIMINAL SESSION.

Otago Daily Times, Issue 767, 2 June 1864, Page 5

SUPREME COURT.—CRIMINAL SESSION.

WEDNESDAY, June Ist,

TheCrimi-al Session of the Court wa? commenced yesterday forenoon, before Hi 3 Honor Mr Justic?, Richmond. The following were sworn of The Gtrakd Jurt.

Richard Seward Cantrell, Dunetiin. Gentleman,

Foreman. John Jones, Dunedin, runholder. William M'Kenzie Dunedin, gentleman. Hu^li Kirkpatrick, Dunedin, merchantFrancis Crosslev Fulton, The Forbury, gentle

man. Alexander Canick, Dunedin, merchant, (ieorge Turnbull, Dunedin, merchant. John B Mudie, Dunedin, merchant. John Bnll^ck, Cumberland street, merchant. Edmund Franck, Filleul street, merchaut. Frederick Jones, Oa"ersham, gentleman. James Marshal), jun.. Rcslyn, merchant. James M'Kerries, Castle street, merchant. George B. Perkins, Russell >-treet, merchant. Thomas Rclmavne, Castle street, gentleman. Jam's M. Smithers, Forth street, merchant. Job Wain, jun., York place, centleraan l Robert Wilson, London street, merchant. James Wil-on, Cumberland street, gentleman. William Black, Dunedin, runholder.

His Honor, in addressing the Grand Jury saM the present calendar is fully an average one as regards the number of names which it comprises. Some of the charges also, I nm sorry to say, are serious. I observe that there are several charges of highway robbery ; but fortunately, ia none of

the cases does it- appear that ths s ■- o^s "f tl'fl offenders, whoever they may be, has be^n such as to encourage others to attempt to commit 'he same crime. It is a happy cireumstanc;, that hitherto no great success has attended the attempts at highway robbery made in this district. These are the only charges in the calendar upon which I feel it cither nycessary or desirable to dwell. The calendar is swelled, as usual, by a number of charges of theft committed on drunken men in up-country dram shops. We may, gentlemen, on the opening of the present Circuit Court, very justly exchange congratulations on the subject of the appointment of MiJustice Chapman as my coadjutor in this judicial district. You know hnw often I have lamented the undue pressure of jury service upon the inhabitants of Duuedin. The appointment of an additional judge will directly tend to mitigate this great public inconvenience; for it is contemplated at once to establish in this judicial district consisting of Otago and Southland, an inland circuit and the effect of that must be to draw off from DuneJin a considerable amount of jury business. For myself, I must say that I personally rf joiee that this appointment restores to New Zealand a judge of solid learning and Jarge experience. Mr Chapman's intimate knowledge, nioreove'1, of the course of legislation and lesal practice in Victoria, cannot fail to be of great public service to New Zealand. This new appointment goes far to remedy two contrary evils under which we have labored in this part of New Zealand, ft is true, though paradoxical, that we hive suffered from too great a concentration of judicial power, and at the same time, from tos great a dispersion of it. You know that courts of law have to deal with questions of fact—which in the Supreme Court are tryableby jury—and with questions of law. The trial of questions of fast, of course requires the attendance of witnesses; and everybody who has had the misfortune to have to pay a lawyer's bill in a civil cause, knows how large a proportion of the expense is occasioned by the attendance of witnesses. So that, wherever there is any considerable amount of business, it is obviously cheaper and better to take the Court to the witnesses than to bring a Insfc of witnesses to the Court. That is the simple reason for the establishment of Circuit Court-;. In this respect, then, as regards the trial of issues of fact, we have labored under the disadvantage of too great a concentration of judicial power, and it would have been better for us if such a Circuit Court could have been established before now. As regards the other branches of the business of the Court, the trial of issues of law, which is for the Court alone, we have suffered from the evil of too great a di-persion of judicial powor. The judges here have to sit alone, and to bring; their solitray minds to bear upon these questions of law, and obviously with great disadvantage. All the Common Law Courts at home, as you doubtless know, consist of several judg-es, antiques tions of law are always inootei before the full Court. It is true that in some of the Equity Courts there is a sole judge; but in the latest created equity jurisdiction, that of tiie Lords Justices, two of the Lords Justices are associated with the Lord Chancellor, showing- that the Legislature recognises the advantag; of bringing several minds to bear upon lejral questions. I think the coaanon objections to the division of responsibility do not apply, or app'y very feebly, in the case of judicial business, and it is far better, in all respects, to have legal questions argued before several judges instead of before a single judge. The new appointment, then, as you will see, gentlemen, will at once mitigate these two contrary inconveniences. It appears to be thought in some of the cold mining districts, that Mr Justice Chapman's appointment was intended to remedy tiie great evil that is no doubt felt of the want of a ready appeal from the decisions of the Wardens in ewes relating to mining. Bit that is not so. The judges of the Supreme Court, on circuit, do not decide questions of law, except such a* are inextricably mixed up and entangled with questions of fa?.t, or with questions of evidence arising in the course of a trial. It is the Supreme Court sitting here that disposes of questions of law ; and they are wrong who suppose that the second judge was ever intended to try mining appeals. No doubt it. is a real want tbafc there should be such a Court of Appeal, snd I am glad to understand it is likely io be supplied in another way. I am glad to know that the Government contemplate appointing, if they have not already appointed, a barrister, a gentleman of very lrgh stan-iing1, and of unsullied character, to the office of District Judge. The duty of that judge is to hear appeals from the decisions of the Wardens in gold mining dispute", and along with that, he has a criminal jurisdiction which will still further tend to relieve ths inhabitants of Dunedln from the frequent attendnnc •on jury trials to which thry are now condemned. Perhaps we may, and 1 liope we may, felicitate ourselves upon the pro-pect pf come increased accimniodaiion in thii building, which is grievously wanted, and which the appointment of a second judge has rendered absolutely necessary. I understand that the want is about to be immediately remedied ; fo that, g-entleinen, wa may congratulate ourselves that several very considerable inconvenienc s under which we have labored, are now about to be put, an end to.

THE ORDKRED INDICTMENT FOP. PERJURY,

The Crown Frosecutor (Mr Howorth) applied that the recognisances of Abraham Moses (who appeared in the Court) should he discharged. At a previous sitting, His Honor would recollect, he ordered an indictment for perjury to be preferred aaainst Moses, who appeared at last sitting of the (Joui'f, on his recng-nisances. If. then turned out that the principal witness - the plaintiff in the ease out of which the supposed pe.-jury arose—had lefc the Colony, and His Honor enlarged Moses's recognisances to the present sitting. Tiie principal witness was still out of the Colony, and in his absenoe it was impossible to frame any indictment against Moses. His Honor said that the defendant would be discharged by his appearance; for he did not think it proper to call upon him to enter into further recognisances. Mr Ward wished to state thnt Moses had nothing to do with the witness's going away. His Honor believe I that. He remembered that he commented upon the matter at the last session There were great laches somewhere. The defendant was discharged. THE INTENDED PRIZE FIGHT. The Crown Prosecutor appliei for lfave to exhibit articles of the neace against John H. Dufty and Richard Hill. The men were in prison for want of bail, on a charge of intending to enrage in ii priz • fight. His Honor : There was no breach of the peace 1 The Crown Prosecutor ?aid there was not. The. men hail remained in prison and he now asked to exhibit articles of tlie peace against them, ii order that they might be brouaht up and dealt with as his Honor might order, whether to ba bound to keep the peace or otherwise. Mr Ward said it would be very hard if these men were to he called upon now to find sureties —they had been in gaol simply because they could not do so They had been iv prison two months; and he proposed that they should now be called upon to enter into th rir own recognisances. Their imprisonment would no doubt be a warning to thsm.

The Crown Pr • secutor said that this was the first attempt to introduce into the Province the disgusting and brutal system of prize-fighting ; iind if t!.e parties had not been shown that the law would not allow such proceedings, they would probably have fought it out before this. His Honor said ha had read the depositions. The men did not appear to have met on the ground. There appeared to have been a mutual gladness that the other did not appear—which was rather a strange sort of feeling for prizsfighters. Let the constable have leave to exhibit articles, and let the men he brought up next morning. He would meanwhile consider whether he should take the mtn's own recognisances, to which he confessed he was inclined. CHARGE OF STEALING A WATCH. GJeorcre Green and John Hayes were indicted for having at Oamaru, on the 28th February, stolen a watch, the property of John Hambledon, a butcher there. Hayes was also charged with receiving the watch knowing it to have been stolen.

The cace was a very slight one. The watch, which had been won foi1 the prosecutor in a ram , was said to hr.ye been missed from the kitchen of the prosecutor, soou after Greea had left the placs, and it was subsequently found hi the posse*siou of Hayes. The jury found a verdict of "Not Guilty," and as the Grand Jury had ignored a second indictment, the men were discharged. CHARGE OF ROBBERY..—A CURIOUS CASR. Walter Alfred Crouch was indicted for having while servant of John Launder stolea a gold watch, a gold ring. 13 oz^ of gold, and money, the property of his said master. The Crown prosecutor (with whom was Mr H. Howorth) conducted tl.o prosecution ; and MiBarton appraredfor the prisoner.

The following evidence was given:— John Launder : For the last eighteen months or two years, I have kept a stpre at Mr MTaer.

1 wb's sr itio , c ; < '< eu or tweii'.v nii!^ this side of the i uusi-'iii. I a!*.-drove my own t~m • d I the 23rd M:a-ch, I left, home with itfor Dun-tin. The prisoner had been in my employment eighteen months. His duty was to take charge during my absence, and to protect two females from insult. One of them was ray wife and the other a servant. I lef r, at home Ll5O in notes, belonging to my '■' inisius'' and me, which vrs had put by to take home, and of which only us two knew. It was in a little coffee can and buried; we buried it one night after every body was in bed. I also left 13 oz of gold, a gold geneva 1 watch and chain, and a gold ring. The stock was worth fully 1300; the prisoner took stock just before I left, The watch was a Geneva, and I bought it for my wife. The ring had a nugget in it, and bore the words "Snake Valley," a place near Ballavat. I had had it cut to enlarge it a little, as it would only fit my little finger. It was done by Mr Solomon, who also mended the chain in six or eight places, not with the same metal, as I paid him for, but with something like silver. I could swear to good 4oz ofthegoM, because they were peculiar pieces I had picked out to take home to my father in the old country. The 9oz I meant to sell when necessary. The prisoner hal no authority to sell it; he never did sell any gold for me. I was away eight days, and when I returned and saw my store fastened up, I eot so nervous tbat I upset the dray and nearly killed two of my horses. I did not go in as I hai a load of fruit for the Dunstan, whic'i would have spoiled. When I returned I had eight diggers in the dray. I iToke open the door and found three dead eats lying there. I had left eleven cats and three dogs, and three of the cats had been eaten by the others, 'i he stench was horrible. The cats had got into the butter t\ih% and my wife's clothes and the bed clothes were puled all about. I got a digger to take an inventory of the things left, and tiien came down to Duenedin and gave information of the loss of the things I havemmed. In eoosequence of something which 1 heard, I walked to Hawkesbury (Waikouaiti), and took the police to a place ov?r Mr Johnson's blacksmith's shop. My wife was there asleep, and the s-rvant girl was lacing her stays. The prisoner had just got up and gone to work. I did net see him until he was brought to the lock-up. Afterwards, the police took me to the Royal Ho el, and Mrs Beale, the landlady, produced my watch. I saw my ring ia the possession of tb.fi police at the lock-up. By Mr Barton.: A drayman bought the watnh f or me—he did tot eire it to my wife. I bought the rinsr from a digger for 355. I never was in Snake Valley, and did not get tuese words en graved on the ring. My wife did no 1, buy the ring. I swear that there was uo receipt sriven by anybody when tli? ring was purchased. The man I bought it from was one of two hard-up diggers. One of them uiighi; have been called John King for all I know. This document you have handed me has been made up since the purchase. I swear that I left Ll5O behind in a coffee canister. I admit that when I cams to town I went to Whittingbain Brothers and toll them that I lrsu no money and could not pay tlum the amount of mv debt. I caused a letter to be written to them to the same effect. I say it wn'i not. a lie I told them ; they would have trusted me double the amount. The gold was in four chamois-leather b;'.gs, which wero wrapped in an old niaht-cap, and stuck under some boxes on which the bed pillows were; the money was buried about the same place. I had had the money in the house four months. I took it out of the store. wh?n I was taking L4O o;1 LSO aday. I told Whiltinghani Brothers that I was on!y doing trale to about a fey pounds a week. That was not a lie—it was quite true at the time. I wa^ taking L 2 or L 3 a day, but I was losing every trip by my cart. When I entered the place, there was a hole where the coffee canister had been, just as it a mole had come out. I searched the place high and low, and could not find either ihe canister or notas. I had between L2OO anl L3OO in the Union Bank, Dunedin ; yet I swear that I had the Ll5O buried. The money in the Bank was store money ; the Ll5O was our own. I swear that I never thought of such a thing as becoming insolvent. I have not the numbers of any of the notes, because I can neither real nor write; and as the money was secret between me and.my wib, I could not ask anyone to take the nnmbers

Wm. Frederick Hull: I am agent for tlie Bank of New Zealand at Waikouaiti. On the Ist April, the prisoner sold to me at the Bank, gold for which I paid him L 9 Os 6i. The g'ld was much more nusgetty than is usually sold at WnikouaiLi, and I noticed thnt there were pieces of quartz attached to some of it.

Frederick Kenward, bavmau at the Royal Hote?, Waikouaiti. The prisoner stopped at the Royal Hotel for about three weeks with two women. While they were stopping there, they went out, the prisoner stating that he was going to marry one of the women, and when they returned, he sud he h:id been married — not to the woman who was called Susan GKldea, but to the other afterwards, the two occupied one room, and Susan had another. Previously the women had slept together, and the-prisoner slept in another part of the house. They stopped there for a fortnight after the alleged marriage. Before they left, I was called upon to sign a document.

Frank O'Brien: X am a sergeant of police, Stationed at Hampden, Moeraki. I found the document produced in the pocket of a coat left at the prisoner's lodging, and for which he asked, and which 1 fetched him, while he was in the lock-up. Kenward's examination resumed : This document was written by the prisoner in my presence, and I signed it for Mr Beal?, my employer. The document is ;~" Received from Mr W. A. Crouch a gold wat-.'h and ch'un as a deposit on a promissory note of hoard and lodging; to be paid two months after thi* date. H. VV. Kenwarr], pro Joseph Beale. 18th April, 1864. No. of watch 9368."

Joseph JBeale:' I keep the Royal Hotel, Hawkesbury. The prisoner came to my house about the end of March, with two females While lie was there, he told me he had married one of the females, and he stood wine and things. When lie was <ioinK to leave, he told me he had been robbed in the house of all the money he had and his married lines, and that he could not pay me. He asked me to give him time, and I consented. He left a watch, in'part security for the payment. The woman to whom he said he was married, took the watch off her neck, and laid it on the tab!e. He asked me for a receipt for the watch, and when he had written it my barman signed it on my behalf. This is the wa^ch produced.

Frank O'Brien : I apprehended the prisoner near Waiokouaiti. On his finger I found the rina1 p-ioduced. 1 obtained this watch from Mr Beale.

By Mr Barton : He made no statement to me about the rin?; he simply objected to being taken without-, a warrant.

Frederick Walfor. 1: lam a miner. I know the prosecutor's store on M'Pherson's Flat. I was present last May when the prosecutor bought a ring for 35s from a man who came down from the Shotover. The man was to have ifc back if he paid back ihe nr.ney—if not, the prosecutor was to keep it. I did not see any document given. This is the ringl. By Mr Bartou: I saw the man offdr the ring to Mr Launder. I did not see the person called Mrs Launder at that time; but she was present when the money was paid. I swear that Launder paid the money to the man, but I <)o believe that he got. it from Mrs Launder in the little place off the store.

Mr Barton made a short and telling speech for the defence. His Honor said that the case was the most strang-3 one he had y::t had in that Court. The aspect of the case would vary considerably, accordingly as the }nrv believed that 'he woman spoken^ of was Laun lei's wife ur was not. There was evidence upon the point on which the jury would be free to come to either conclusion. As a geueral rule a jury would be justified in presuming marriage from cohabitation, except in certain cases, of which this was not one. Take first the assumption that the woman was the wife of Launder. Husband and wife were one in law, and a wife could no more steal from her husband than a man could steal from himself. If a wife made ofi" with her husband's property, and in company with a stranger, the law was that if they were adulterer and adulteress, then the stranger was guilty of larceny, and it was the same whether the adultery had been committed or was only contemplated. The intention of the pirtie* to go through an empty ceremony, that, of a pretended jnaniage, would not do away with the guilt of the stranger, but would superadd the euilt of bigamy to the other guilt of the woman, [t had been put with considerable acumen by the counsel tor the prisoner, that although the prisoner might h<we committed adullery. he had not the intention to do it, bur. he (the Judge) did not think he should be risht in telling the jury that intention had anything to do with the matter, If a man chose to think that there was a flaw in the " marriage lines '' of another, and ran away with his wife and cohabited with har, he was an 1 adulterer, although he might suppose that he had picked a flaw in the marriage or the woman. If the jury should think this woman was Launder'a wife, than did she and the prisoner contem-

■plate a'lul'ery? If so, what property of the ■■iisib-inU (id ihe;, take awa> 1 If the woman was his wife, the watch wasL aunder's property, even though he had " made her a present" of it as it was ca led The case of the ring stood on rather clea-cr ET'ound- Launder while admitting that he gave the watch to his wife, as distinctly denied that the ring was ever hers, and \t very clearly remained the man's property. Did the prisoner, then go away with the woman, contemplating committing adultery, and taking the ring which was found in hi 3 possession? That was the strong point of the case; for he agreed with counsel for the prisoner, that there was great difficulty with respect to the "plant" of LISO. Ha did not say that he disbelieved Launder, but the story was an extraordinary one f> and there was nothing to bring home to the prisoner posses-ion of the money. Some one else might have got it, or, as had been suggested, it might still be in the possession of the woman. As to the gold, there wa<? evidence that the prisoner did sell some at Waikouaiti, but there was no identification of it. Suppose, now, that the woman was not Launders wife—that would, in some degree, make the case still stronger against the prisoner, for then, any goods belonging to Launder were taken away, not by his wife and the prisoner; but by two strangers. This would be true except as regarded the watch, which strangely enough, in this complicated case wou'd now stand differently. For Launder had sworn that he presented the watch to the woman, anl if she was not his wife, it would have become a donation. Shortly stated, if the jury should be of opinion that the woman wa3 Launders wife, and thai; she and the prisoner went away contemplating adultery, then th?y would convict the prisoner; if they thought she was not his wife, then still more clearly, he was found in possession of property of Launder, which neither of them had any right to handle. The Jury were absent for a short time ; and the Foreman announced that they had agreed to a verdict of " Guilty of receiving the ring, knowing it to have been stolen." Mr Barton : That is equivalent to a verdict of Not Guilty.

His Honor told the jury that the indictment was simply for stealing che property. It was a very common thing for juries to suppose, in cases where the evidence ail not go further than to show possession of stolen goods, that they were on'y justified in finding a prisoner guilty of receiving. But where a person was found in recent possession of stolen Rood-, the presumption of law was, not that he had received them, but that he had stolen them. He had no wish to dictate to the jury or to say that they were not perfectly justified in adhering to their decision; but he wished them to think over his remarks, which huJ been made only Jest some of the jurors should have acted under the misapprehension he had mentioned.

The jury again retired, and in a quarter of an hour the Foreman reburned and said that they wero not iikely to agree. There were ten for adlipring to the previous decision, and two who did not agree with them. His Honor said he could give no assistance irj the difficulty. After aa absence, in the whole of nearly an hour and a ha'f, the jury returned and gave a verdict of Gui'iy. Sentence was deferred, and the Court adj jurned to ten o'clock this morning. BILLS IGNORED. During the day, the Grand Jury returned " no bill in each of the following cases : —

William Smith, obtaining money by fake pretences.

James M'Neill, assaulting, with intent to rob, Ma 7 Purchas, stealing from the person. Alexander Oarr, on bail. CASES IN O.RDE3 FOR TO-DAY.

Caroline Launder, bigamy; Charles Crawford, Chas. S. Oliis-, John Casey, Thomas HawJings.