SUPREME COURT.

Otago Daily Times, Issue 1156, 4 September 1865, Page 5

SUPREME COURT.

CRIMINAL SESSION. (Before his Honor, Mr Justice Richmond.) Satceday, Septkmbeb 2nd. His Honor took his seat at ten o'clock. SBNTEHCB. Henry Burke alias Cook, stealing from a dwelling house property to the value of Ls—Twelve months' imprisonment, with hard labor. TUB " BUSHRANGERS." Alfred Davis and William Evereste were | placed in the dock, and jointly pleaded Guilty to indictments charging them with highway robbery, horse-stealing, &c ; and separately they pleaded Guilty of stealing money and other offences. Sentence was deferred. Davis pleaded Not Guilty to an indictment charging him with shooting at John Fawcett Thompson, and other persons ; there being different counts charging the intent to have been to kill, to maim, to disable, to do grievous bodily harm, and to disfigure. CHARGE OP HOBSE-BTEALING. A DISPUTKO j SALE. j William Raynor was indicted for steal- i ing a horce, the property of {John Young; a second count charging that the animal stolen was a colt. The Crown Solicitor conducted the pro'mention; and Mr E. A. Julius appeared for the prisoner. The Crown Solicitor, in stating the case, J explained that the animal which the prisoner was charged with stealing was about three years old; and as it was doubtful whether it should be called a horse or a colt, the indictment described the offence both ways. The animal had been the property of the prisoner. There was a sale to the prosecutor ; and the jury would have to say whether the taking possession of it by the prisoner was not a stealing, whatever might be said, in defence, as to the nature oJ the sale.

The Prosecutor stated: I am a storekeeper at Hampdin. In May, 1864, the prisoner owed me money, and on the evening of the 25th of that month, at Murcott'9 Hotel, he sold me a colt for Ll4, to be deducted from his account. The debt was L 34, and I gave him credit for the LI4. The mother was tied near the fence of the hotel, and it was supposed that the colt was near. The prisoner was to le.;ve the colt for me at Craig's stockyard nest morning; and I found it there. i did not sec the prisoner again until the 29th April last, in Dunedin, at the George Hotel. He asked how the colt was getting on, and whether I had had it broken in. I said, " No." He said in the course of conversation, " The wife signed a bill for you ?" and I said, " Yes." He said that she had written that she had signed a bill for the horse; and that he wrote back that it was the same as if he had done it himself, for he had sold the horse. Afterwards, I saw the prisoner at Hampden, and he remarked that it would be a useful and good horse for me. He spoke of working up his account, and I told him the balance was LlB 6s sd. It was mentioned that the Ll4 for the horse was deducted, and also L 2, I had had from his wife. I twice mentioned the L 2, sayinp that I had got it from his wife after he left for Picton. On the 25th May, 1864, when the prisoner promised to put the colt into Craig's stockyard, he said that it was with a view to my branding the colt before turning it out. From that time until July last, the prisoner never made any claim upon the horse, and I never authorised him to take it from Mackay. By Mr Julius: We had but one nobbier round at the hotel on the 25th May. I considered that the prisoner had got a little drink in him, but he was not drunk. His mate was with him. I got the bill of sale from the wife, lest the prisoner's creditors in Oamaru should file an execution against him and claim the colt in the absence of Thornberg, the principal witness to the sale. [The witness was crossexamined with a view of establishing contradictions between his present evidence, and that before the Magistrate; and also as to the dates at which certain entries charging the prisoner, as they appeared in Young's books, were made, first in pencil and then in ink.] On the 26th May, I went to Craig's stockyard, and my «on went with me, carrying my branding iron. I meant to have branded tbe colt; but it was not there. I saw it there subsequently ; and my son told me that he had put it there. I believe that on the 26th, the prisoner rode away on the mother, and that the colt followed. In consequence of something which was told to me, I sent my son after (he prisoner on the 26th. Peter Wallia Young: On the 26th January, 1864, after going with ray father to the prisoner's house, I rode after the prisoner and overtook him. He wa3 riding and a colt was following. The prisoner said he was going looking for work; and I said, " You had better come back and deliver the colt to father first, for father is waiting." He turned back about 100 yards, and then he said he would take the colt to Otepopo and sell it, for he conld get more there for him than father had giveu him. Thornberg rode up, and the two spoke. I heard something said, but not rightly; and I added, "Jr you do, it'll be the worse for you," meaning if he took away the colt. They rode a short distance, I going towards Hampden, and then the prisoner called me back and said, "If you're so frightened I'm going to run away, you had better drive the colt back yourself." He assisted me until I got command over the cole, which was uneasy at leaving its mother. I drove the colt to Craig'3 stockyard; and from that time until July last the horse was sometimes in our stable, sometimes running round Hampden. I did not see the prisoner again until May last. He was then at Hampden Bush, an'l he continued living with his wife until the middle of July. His wife had been living there from May, 1864. About the middle of June last, we gave the colt to the horse-breaker to be broken in. Wm. Murcott, landlord of the Hampden Hotel, Hampden: I remember the prisoner and Young being at the house on the 25th May, 1864. I heard Young say that in allowing Ll4 off the prisoner's account for the colt, he was allowing the full value ; and the prisoner replied that it was not too much, for the colt had the makings of a useful horse as he grew. I did not hear anything more as to the matter on that occasion. I knew the colt. I have, since that conversation, repeatedly eeen the colt in the possession of Young or his son, or running on. the Moeraki huu-

dred. I saw it in Mackay's keeping when it was being broken ; and on the Bth July I saw the prisoner riding it again. lie absconded from Hampden on the 26th May, 1864, and was away thirteen or fourteen months.

By Mr Julius: I call it absconding when a man goes off from a neighborhood, and leaves the majority of the storekeepers in debt.

John Mackay, butcher, Hampden, stated that "some time back," but "since the beginning o£ 1865," the colt in question was given into bis possession to break in. He kept it until some day in July, when it was taken away from his father's paddock. —By Mr Julius: I remember going to the bush for timber, and asking the prisoner (who had a pit) to saw it for me. I said to the prisoner, " What do you think of Bobby ?" meaning the colt ; and he asked, " Who gave it to you to break in ?" or who " authorised "me to do* it. I said that Young gave it to me; and the prisoner said he should have to ccc whether it was Young's or not. Ido not remember that he spoke of going to a solicitor. Thomas Slackay, father of the preceding witness : I remember, on a Saturday, my daughter coming into the house and saying the prisoner wanted me. I went out, and he said, " I've come to take that colt away." I said that he had better wait until my son returned; and the prisoner replied that he was authorised by his solicitor to take his property wherever he could find it. He asked me if the colt was quiet, and I said "Yes;" but that the bridle on it belonged to me. lie said that he would return me the bridle in the afternoon.

The Judge: Can you resist this evidence, Mr Prendcrgast ?

The Crown Solicitor : I think not, your Honor.

The Judge told the jury that it might be that the colt had been properly made over to the prosecutor; but that was not the question here. The question was, whether the prisoner took the colt feloniously. Where a man with a fair claim of right — not one that was necessarily good and valid—took possession of property as this colt had been taken, there was quite enough to negative a charge of felony, and the case against the prisoner had been properly dropped. All the presumptions being in favor of the prisoner, he could only tell the jury that they could not find a verdict for felony; but that would by no mean 3 decide that the colt belonged to the prisoner, or that he was right in doing what he had done. (To Raynor) You are discharged. The law provides proper modes of redress ii all disputes as to propeity, and you should have pursued one o{ them. Tue course which you, did pursue was, at the least, dangerous and inconvenient. Raynor left the dock. CHARGE OF SHOOTING WITH INTENT.

Alfred Davis waa indicted for having at Maru-wen-nua, near Oamaru, on the 17th June, with a certain pistol, loaded with gunpowder and other destructive materials, fired at James Fawcett Thompson, with intent him to kill and murder. There were three other counts, respectively charging the intent to have been to maim, to disable, and to grievous bodily harm. The Crown Solicitor stated the case; the prisoner was not defended. Keziah Little: My husband, James Little, keep 3 the Maru-wen-nua Hotel. On the 17th June, the prisoner came to my house with another man, Evereaie, and asked for glasses of ale. Before they got it, the prisoner said, "Where's Little ?" and I said, "Down in the paddock." He said, " Which is Little ?" and I said, " The man in the white shirt sleeves." The prisoner put his hand to his back coatpocket, pulled out a revolver, and said, " I'll bail the b up, while they're there." The two rode away to the paddock. They went close to a ditch on my side of the sod wall, round the paddock. They would then, I think, be GO yards from me. My husband and Thompson were in the paddock, about the width of a Rood-sized garden bed from the wnll. I heard high words. The prisoner had got off his horse and put the bridle over his right arm. He levelled the pistol, and fired across his left arm, ovgr the paddock, towards Thompson, who was then walking across the paddock, not to the stable, but with his back towards it.

By the Prisoner: My husband and Thompson were some feet apart when you fired, Your back was not to me—you were standing half-side towards me. I could tell that you fired at Thompson and not at my husband ; I could see distinctly, though I was 60 yards off. I heard your mate say, " Harry, you've shot your own mare in the neck;" and you replied, "No fear." Your two horses were close together. You were talking very loudly at the time, far you were angry. Your mire was rubbing her head up and down her legs, to .wipe the sweat off her face, at the time you fired.

James Fawcett Thompson: I am groom at the Maru-wen-n.ua Hotel, and was so on the 17th June. I saw the prisoner there'j on that day. I saw him ride up to the house with another man. They then rode to the paddock; and the prisoner, who had a revolver in hi* right hand, bade us to stand. I was four or five yards from the fence at the time, and Mr Little was near rru. The men came to the fence. The prisoner said, "A. horse I A horse ! I want a horse !Is the stable open ? " Mr Little said, " No." He said, " Have you the key ? iJ and Mr Little said " No, the groom's got ie. ;i The prisoner said " Chuck me the key ?" I replied, " Wait; if yon want anything, I will let j-ou in." I was going out of the paddock, towards the gate, and he said, " If you don't give me the key, I'll blow a hole through you;" and with that, he let drive at me. I mean that he fired one barrel of the revolver. I know, that the pistol went off, whether it was loaded or not—the report was not the mere snap of a cap. I know, too, that some-, thing went very near me, by my right cheek. I did not see any- i thing, but there was a " regular wLish" | of something passing. I heard Evereste j say, " You've shot your horse's neck," j and the prisoner lifted the bridle and | looked, and said, " It's all right." Mr Little wa9 eight or ten yards from me, and I was nearer the gate, through which I had to go to get to the stable; but in going to the gate I was going from the stable. This plan shows juit about the relative positions of the paddock fence, the river, the accommodation house, and the stable. I think I was eight or ten .yards from Davis when he fired. The fence is 4fc high from the bottom of the i ditch; and the ditch is 2ft. or 2ft. Gin.

wide. I was pretty close to the fence, bat nearer the gate than Davis, and he fired slantingly over the fence. By the Prisoner: When you fired a* me, I think you would be six, eight, or tea yards from Evereste. You slewed a little towards me. You did not leave your horse, but you fired a little over its neck. The horse was bobbiug his neck up and down, and you snot through his mane. You looked into the mane, before you replied to Evereste that it was all right. I scarcely could be snre whether you had or had not your arm on the horse's neck when you fired; but I think that you had not. I think that I did not state at Oamaru that you followed me down the lence, leading your horse. It is a fact that you did not follow me down the fence: I am sure of that. You rode .'down with Evereste; but you were at the ditch two minute?, I should! think, before you fired, arguing for the key.

The Judge; There is nothing in the depositions about your following him. The Prisoner : No, sir, but the depositions were completely altered at the suggestion of Mr Branigan. The Judge : I cannot believe that.

The Prisoner: No, sir; but it was so; and if I could ask Mr Branigan a question or two, he could not deny it. Cross-examination continued: There was a little difference between what I stated at Oamaru, as to going to saddle a horse, and what Mr Little stated, but it was only very slight. Mr Little was brought forward to have a change made in his deposition, but I think only one word was altered. The depositions will show what was done.

The Judge: You have admitted, the charge to which all this refers; and that charge is done with.

The Prisoner : This man made a statement about a horse—the saddling of it— which differed from Mr Little's; but he was put aside for a while, and then Mr Little was got to make quite a different statement from the first. I wished a note to he made that the statement had been altered; but the Magistrate said that it was of no importance. The Judge: I think so, toa; besides, you have pleaded Guilty to that charge, and there's an end of it.

Thompson re-examined: I have said that the prisoner had a pistol in his hand, and that he.presented it at me. I did not particularly look at him as I walked towards the gate, but I did not lose sight of him. He had pointed the pistol and iakon aim at me, and he did not lower the pistol until after he had tired. I did not think he would fire.

By the Judge : He covered the both of us with the pistol, at first; but he kept it pointed at me, when he knew that I had the stable key.

James Little: I keep the Maru-wen-nua Hotel, 30 miles from Oamaru. I sawr the prisoner on the 17th July. I aaw him and another mau ride up to the house when I was in a paddock GO or G4 yards from the house, with the groom. The prisoner had a pistol, and he bade us stand up, said he wanted a horse, or horses (I don't know • which), and demanded the stable key. I said I did not keep it ; and the groom walked away towards tne gate. I saw the pistol which the prisoner had; it was very like the one now on the table. When the groom w»lked away, the prisoner said, " That won't do for me. If you don't chuck me the key, I shall blow a hole through you;" and with that he shot across the horse's neck, the pistol being pointed in the direction of the groom. It was a pretty loud report. This plan is a3 correct as you could get it. The men first rode up to the side of the ditch, about 30 yards from the The ditch is 4ft. or 4|ft. wide. I should think Thompson waa from 10 to 12 yards off the prisoner when the pistol was fired. By the Prisoner: Your right arm was not resting on the horse's neck, but was above it, when you fired; and the horac was rubbing his nose up and down. Thomas Meredith Smith, mounted constable, stationed at Oamaru: On the morning of the 19th June, I arre3ted the prisoner at May's accommodation house, Otamata, Upper Waitaki, about 35 miles from Little's. He was concealed under a bed in one of the rooms. I told him to get up, and I arrested him for firing at James Thompson. I found on bioi this pistol", bullet mould, and box of caps; and tied in bis neckerchief a LlO and L 5 note. The pistol is a five-barrelled revolver. One c'uatnber was empty, one loaded with ball, and three with cotton rag and powder; all the chambers were capped. Immediately after arresting the prisoner, I examined the pistol, at his requst, to see if it would go off at full-cock. It would not do so; and I tried it subsequently, with the same result. It seems to me to be in very good order.

By the Prisoner : On the night before I arrested you, Evereste told me that you had this revolver, and would probably shoot me or some one else.

The Judge: That is not evidence; although it's true the prisoner asked you about it.

The Prisoner : I wish to know whether Evereste did not tell you about my carelessness, and say that the firing was the result of accident?

The Witness: Evereste certainly did not say one word about " accident.'1 The Judge: If he did it could not be evidence.

This was the case for the prosecution. The Prisoner, in his defence, said— Gentlemen, if I should be rambling anil tedious in my address to you, I hope thai you will bear "with and excuse me; but, knowing my innocence, I must, at the risk of being tedious, declare that I never did fire at Thompson with any intent whatever. You know that thia morning I pleaded Guilty to nine or ten charges; and it is possible, unless you guard yourselves very carefully, you may be biassed in this matter. Then, you may doubtless think, that because I am guilty of those very serious offences, I am also guilty of this more serious charge; but if you do so, you will be doing me a great injustice, and will be disregarding the oaths you have taken to abide by the evidence only. It would be useless for me to tell you the real manner in which this thing occurred; it would be only a waste of time; and it would be equally useless for me to speculate upon the causes which have tended to the production of the evidence in its present shape and form. It would do me no good to show how the evidence has been made into its present form; or what was the conduct of those who conducted toe prosecution, at Oamaru. Seeing that there ia no apparent motive way

the witnesses should stale or act otherwise than-truthfully and honestly in the matter, -I«ttmtt confine myself to those portions^ of the evidence which I think make it probable, or very possible, that I am innocent of the charge laid againstr/Ste. You will notice that nearly the whefle 'of the witness s concur in stating^&£t at the time ti i* firing took place, I«was leading me horßc ry the reins and had the pistol in the snme hand- AricTtfitsTpistol, one of them tell* yoaj waa#o(igewhat raised above the mare's necky anj^phat at the time of the firing the mare was moving ita head up and down. I ask you, is it impossible that this movemetitMon (he part of the mare was the cause of the firing of this pistol ? You must not'1 think, because I was there committing a serious offence, that I am capable of one still more serious. I think that if you examine the facts about the mare, you will see how probable and possible it is that this movement was the cause of the firing taking place. There is another portion of the evidence that I would bring under your notice; and that is, that Evereste made an exclamation to the effect that I had shot the mare, and you are told that I examined the mare's neck, "by lifting the mane to see if the mare had received any damage, and that when I found such was not the case, I observed that it ■was all right. If I had my hand holding the pistol in the manner alleged by the witnesses', it is impossible to suppose that I should have looked at the mare's neck. For what reason would I have looked, if I knew in what direction I was firing. I think, gentlemen, that that act is altogether inconsistent with my guilt upon this matter, but is quite consistent with my innocence. If you should think that the movements of the mare produced such a strainupon my arm as to cause the firing, I think you are bound to acquit me of the charge. The fact of my looking and examining the mare's neck, shouldatfbc sufficient; and I think you will understand that, from the position in " which' the witnesses place me, it was perfectly impossible for me to have fired and to have hit the mare's neck, except I had some instrument that would shoot round corners. I have no evidence to produce to counteract the effect of the "witnesses who have been called ; but I think, if you will look at these facts, such as they are, calmly and dispassionately, you will see that it is quite possible for me to have fired without any intent whatever. Although there is no motive why the witnesses should at otherwise than truthfully—and I think they know the difference between right end v/rong —I am sure there is no more difference betwixt the glare of noon day and the blackness of darkest night, than there is between the real circumstances and the way they have related them, Why or wherefore they should not, I cannot tell,; whether they were paralized with fear 'or njr, I cannot tell ; but they have not stated the facts as they occurred; "There, is no reason why, if I was guilfy'of thfs'cnarge, I should not have pleaded Guilty to ; it, equally with the many other charges 1 pleaded Guilty to this morning. It can have no effect upon me or nponJ":ihy sentence. The sentences I must necessarily receive must be of so grave and serious a character, that I can never expsct to see the end of them, ordinarily, in life ; and wherefore "hould I not have pleaded Guilty to this charge, if I was Guilty ? TVhy should I have any hesitation in pleading so, but that I know I am innocent ? I cannot detain you longer about the case, whichever way it may end. If in considering the evidence—and I hope you will give it calm and dispassionate consideration —if, in testing the evidence, as I may say, in the crucible of your intelligence, you can extract anything from it to my advantage, I trust that you will do so. It is not in the power of man to make falsehood truth*;'nor can the evidence of the witnesses, nor even the sentence of His Honor, turn my innocence in this matter into guilt. I have done, gentleman: that is all I have to say.

The Judge, in summing up, said that the practical point for the consideration of the jury was whether the prisoner shot at Thompson with intent to kill him, or with any other of the minor felonious intents charged in the indictment. He did not assent to the observation of the prisoner, that he (the prisoner) could have no interest in pleading Kot Guilty to the indictment. The offences charged, and especially that charged in the first count, were of a far deeper dye than the mere crime of highway robbery. [His Honor read the whole of the evidence, and briefly commented upon it.] The jury had heard what the prisoner had to say; and certainly the prisoner had made of his defence the most of which it was capable. It was unfortunate that a man evidently endowed with great intelligence —who could put his sentences together ia a way that very few persons could do — should have had to plead guilty to so many and such charges, and should now be standing in the dock charged with one of a still more serious nature. The jury ought not to convict upon the first count, unless they were well persuaded the intent of the prisoner was to kill, and nothing short of" it; but he (the Judge) did not say that the evidence would not justify such a conviction. If the evidence of Thompson was to be believed, the ball passed close to a vital part of him; and ■what a man intended could only be gathered from what he did. If the jury believed that the intent was not to kill, but was to do some one of the injuries alleged, it mattered not whether the jury convicted on any one or all of those counts. It was the common practice, when there was such a belief, to 6nd a verdict of Guilty on all the minor counts. The defence of the prisoner would be a very probable one, did not his expressions prior to the firing militate against it; and it must be considered, too, that Thompson appeared to be disobeying the order given, which rendered it the more likely that the prisoner ■would attempt to enforce his unlawful command, in the way he had threatened to do.

The Jury, after a short absence, returned ■with a verdict of Not Guilty on the first count, and of Guilty on the others. Sentence deferred until Monday; when Evereste is also to be brought up. RESTITUTION OP PROPERTY. The Crown Solicitor mentioned the property involved in the charges to which Davis and Evereste had pleaded Guilty. A LlO note and a L 5 note were found on Davis; who stated that he obtained them from Mrs Geddes, and there was no other case in which notes were obtained. There were four horses in the possession of the policy

The Judge said that Mr Geddes might take an order- for the restitution of the notes.'* As to the four horses, all the coontry-side would know to whom they 'Belonged. Lefc them be returned—one to Mr Julius, two to Mr Dansey, and one to Sir Flicker. Mr Young made an application to the Judge; and, in reply to his Honor, The Crown Solicitor said that, in this case, the police proposed to deliver the horse to the person from whom they took

The Judge: I think the police will do rightly in taking the horse whence, and delivering it to the person from whom, they took it, whoever that was. (To Mr Young) I certainly cannot give you an order to receive the horse.; hut I do not say that it is not youra. The Court was, at half-past four o'clock, adjourned until ten o'clock this (Monday) morning.

Dr John Graham, Lord Bishop of Chester, expired on Thursday morning week. Dr Graham was born in 1794, the son of John Graham, Esq., of Durham, and was constituted in. 1848. He was formerly chaplain to Prince Albert, and was at the time of his death Clerk of the Closet to the Queen.

At Whitford, in Devonshire, enormous mushrooms have sprung up, some measuring fifteen inches in diameter. The Count Cavour, a Turin journal, has published an address of the Italian Press to President Johnson, begging him to accord a general amnesty to all the Confederates without distinction.