SUPREME COURT.

Otago Daily Times, Issue 1157, 5 September 1865, Page 5

SUPREME COURT.

CRIMINAL SESSION.

Monday, September 4th. His Honor, Mr Justice .Richmond, took his seat at tea o'clock.

SENTENCES. Alfred Davis (27) and James Evereste (23) were brought up for sentence. Being challenged on one of the indictments to which they had pleaded Guilty, each declined to say any thing why sentence should not be passed.

The Judjre: Alfred Davif, you have pleaded Guilty to a great number of charges of offences committed on the 16th and 17th June. It is not my intention to inflict on you a substantial separate sentence for each offence ; I shall do that on one indictment, and the sentences on the others will be concurrent. Several of the charges are of such a nature, in fact, that each would warrant a sentence of penal servitude for life. Your case is a very lamentable one. You are aware that this is not your first offence nor your second. You are a person, evidently, of natural intelligence, and you are not destitute of the advantages of education; but you are a lamentable instance of how much better it is to have a few grains of common sense and common honesty, than a good deal of mental capacity. You have proved yourself quite unfit to use the liberty which God gave you ; and I should think it my duty, if a proper peual establishment existed in this Colony, to send you there for your life. But I must take into consideration that such a sentence could not be carried out here at present, according to its spirit and intention—that the punishment here must be substantially different front what was intended, and that under it a man would be immured within the waljs-of a Gaol for a very long period. Therefore, I shall not send you to Gaol for life. Oii the present indictment, the sentence upon you will be, that you be kept in penal servitude within the Colony, for a term of eight years. On you, Evereste, the sentence on this indictment will be lighter. No doubt you were under the influence of your companion; but you were armed, and E must presume that you were ready to use those arms if you had received orders to do so. The sentence on you is, that you be kept in penal servitude for six years. Davis was asked what he had to say why sentence should not be pas-ed, on the conviction for shooting at John Fawcett Thompson.

Davis: I don't know that anything I can say can avail me, now; but lam guiltless of this offence. I know, from the mode in which jour Honor dealt with the evidence on Saturday, that you clearly think me guilty of shooting with intent to murder.

The Judge : No; I do not think you guilty of intent to murder ; but I do think you fired the pistol on purpose. Ido not at all disagree with the verdict of the jury, which found you Guilty of shooting with intent to do grievous bodily harm. Davis: I am guiltless of th.it, 3'our Honor. I think that if I were base enough to commit so cowardly and brutal an act, I should have face enough openly to have admitted it —that I should have acknowledged it when called on to plead on Saturday. But the firing was a complete accident: I did not fire at the man.

The Judge : Alfred Davis, it is not the first time that, in this Court, I have hal to tell you that I disbelieve you; and, although yon have made a very plausible ca?e, I entirely agree with the jury that you fired at Thompson wi h intent to hit him, and that it was only through God's mercy, not by any design of your own, that you failed. For this offence, I shall inflict a substantial amount of additional punishment. The sentence of the Court is, that you be kept in penal servitude for eight years—this sentence to conrnence at the expiration of your former sentence.

Each prisoner was challenged on nine other indictments, but did not say anything. Upon each indictment, each prisoner wad sentenced to two years' imprisonment with hard labor; but these sentences to be concurrent with each other, and to commence concurrently with those for the longer periods. liABCENY. William White was indicted for having, on the Ist October, 1864, broken info the dwelling house of James Peddy, in Cumberland street, and stolen a pair of tweed troupers, three Crimean shirts and one cotton shirt, and a pair of cotton drawers. A second count charged the offence as stealing within a dwelling house. Peddy kept a store in Cumberland street. On Saturdaj', the Ist October, he locked and loft his place at eleven o'clock in the forenoon, and did not return until midnight. Then he found that two windows at the back of the house had been broken open; and on an examination he found that the goods left in the shop were strewn on the floor, and that those mentioned in the indictment had been stolen.

Mr Barton, who appeared for the prisoner, cross-examined the prosecutor at considerable length. He said : I stopped business shortly after this robbery occurred. I locked up my place at eleven o'clock on a Saturday morning, because I wanted to collect debts. I was occupied in that way, or in looking for people, until after six o'clock ; and later in the evening I took supper at a friend's house. I had to pass the back of my store to get to my brother in-laws house, where I was residing. I called my brother-in-law, and he went with me to the store. I identify this pair of tweed trousers as having been stolen from the store. Ido that by the kind of stuff, the make, and the maker's name on the buttons—" J. M'Lrean, Stirling, Scotland." M'Lean did not commence his apprenticeship by making this pair of trousers, and then at once die. I believe that my father, in consequence of what I wrote, bought the stuff in Glasgow, and got M'Lean to make the trousers. They are not slop goods ; M'Lean has made our family's clothing from the earliest time I can remember. The trousers were made for my own use; and here is a second pair, exactly similar, which I received at the same time. The stolen pair was left hanging in the shop, with coat and vest to match. I had put them there for sale. I had about L4OO worth of stock at the time. I had in the shop Crimean shirts of the same quality and make as the one handed to me; but I will not swear that it, or any of the others in the bundle, was stolen from me.

Jame3 Farrell, detective-con stable: I know the prisoner. He lived at East

Harbor, on the right hand side as you go down the Bay. He lived there two yeara, to my knowledge, I went there on tbe> 21st February last. There are four rooms on the ground floor, and a Toft over one oT the rooms. It is on the waterside, about twenty yards from the bank. I went in a boat, accompanied by detective Rowley; the prisoner passed us going towards town. The prisoner's wife and children were in the house. I searched, and in boxes in the sleeping-room I found the trousers and other things now produced. I put them together and brought them away. I returned the same night, accompanied by Rowley and the last witness. I remained atll night, but I did not see the prisoner. Rowley and Peddy returned to town at nine or ten o'clock the following morning; and I planted myself in the bush at the back of the house. About one or half-past one, I heard a " cooey," and went to the place whence the sound came. I found the prisoner sitting in thick bush, 400 or 500 yards from the house. He was cooeying, and also calling " Jimmy to a child near the hou:e. When I went forward,, the prisoner ran away. I called to him, " White! stand ! or I'll fire at you!" He kept running towards the house, and I called to him again. He then turned, ran towards me, and \ swore a mighty oath that he would take the firearms from me and shoot me. I fired off one shot, and told him that if he attempted such a thing I certainly would put a ball through him. I bad no warrant to apprehend the prisoner; but I had one to search his .place. He got into the house, and I tried the door, but his wife and a man kept the door against me. He called out to hand him his double-barrelled gun, until he shot the . I had seized that gun the day previous. I did my best to open the door, but could not, until after a time ,- and then, on searching, I found the prisoner gone. There was no door by which he could have escaped without my seeing him ; but there were two unfinished chimneys at the back, rising not more than 4ft. The prisoner had known me and my occupation for three years. I know the man I saw in the house; he lived there after this time, but he had not done so previously. When I found that the prisoner \va3 gone, I went outside, and the prisoner cooeyed to me from thick bush at the back of the house, perhaps 700 yards off. He said, " Farrell ! come up !' I said, " You may a3 well come down ; for you will be sure to be arrested, go where you will." I did not see him again until the 27th June, when he was in gaol here. He had not been living at home ; I had been there, and been watching the house, several times. I was there with Detective Rowley, only two days before I saw the prisoner in custody. By Mr Barton: I know that the prisoner was arrested for robbery at Ilokitika ; that he broke away from the constable at Nelson ; and that he wa3 rearrested at Picton. I have heard that from constables, and I believe it all. I know that the prisoner had a little land, and I have frequently seen him in town selling vegetables. I have seen him working on the land, but only once. Most of the land is covered with weeds that would cover me; but there is a good bit. cleared. When the prisoner passed me in a boat, on the day I was going down, I believe he had hay in the boat; .and I also saw a woman in the boat, but I did not see^a man. I had no spite again-.t the prisoner. I don't know that tliere are any children's clothes amongst the bundle on the floor there. What are now picked out may be children's clothes, hut I took them because they had been described to me in the Police Office. I took about 10cwt of flour, and I dragged it do'Tn about (JO yards, because [ could not carry it; it was afterwards taken to the Police Office, It has been given back. I had a warrant to search for 10c wt of flour. The receipts for that flour were never produced to me ; but the flour was given back. I swear that when I heard the prisoner cooey, I did not walk up to him and fire a bullet .through his bat. I did fire, but I aimed wide of the prisoner, my object being to intimidate him. I had a revolver, with all five barrels loaded ; and I told him that if he attempted to disarm me I would put a bullet through him. He is a strong man. I was away from all assistar.ee, and I wanted to prevent his ru?hui!» me. Mr Barton addressed the jury. He contended that there were circumstances of suspicion iv connection with the alleged robbery; and that, even if one actually took place, the lap^e of time between it and the discovery of the trousers, was sufficient to call for the prisoner's acquittal. There was here a lapse of five months, less one week ; but there was a case in which, where the interval was three months only, a learned Judge had stopped the case— thus deciding that because of t'ue length of tim?, there was nothing which the jury ought to be called upon to try. The prisoner would be shown to lie a mm getting an honest livelihood, until he wa^ frightened away by the attempt to arrest, and the threat to shoot, him. The following evidence was given :— S. G. Isaacs, agent, formerly auctioneer, knew that the prisoner often came to his mart to buy goods, like anyone else. He c^ime generally on Wednesdays or Saturdays He (rlie witness) once gave his word for the honesty of the prisoner, in the matter of purchasing a boat; and the prisoner paid him L 25 in weekly instalments. By the Crown Solicitor : That would be nearly two years ago. John Daniels, auctioneer, said that he could not find the prisoner's name in his books ; and, although he had been looking hard at the prisoner, in Court, he could only get an indistinct recollectiorfof his face. He' remembered a man once purchasing two or three casks of beef, and not having enough to pay for it; and that Mr Wilson Gray afterwards came in with the man, and said he knew him to be honest and fit to be trusted. Emma Williamson, wife of the landlord of the Old England Hotel, Stuart-street, said that for three years she had bought vegetables from the prisoner. It was three years last June since she first began to buy from him; and he used to come three or four times a week. By the Crown Solicitor: -He used to come three or four times a day occasionally; but he always had vegetables with him when I saw him. Wm. M'Lellan, accountant, said that he knew the prisoner, who was his tenant for 20 acres of land, North-east Harbor. The prisoner carried on business as a market gardener. j Christopher Bonny, storekeeper, Maifc- '

land street, said he had known the prisoner 25 years. He had regularly bought vegetables from the prisoner for three years, np to the last five months.

By the Crown Solicitor: The' prisoner was a gardener for me for five years in Tasmania; I think he was a ticket -of-leave man, but lam not sure that he was not free, for it is 14 or 15 years ago. James Ruston, lighter-man, had bought firewood and vegetables from the prisoner, who used to come up regularly with his boat.

The Crown Solicitor replied, contending that the evidence for the defence had strengthened the statement he made at the outset, that the other circumstances were such as to negative any favorable inference as to the innocence of the prisoner, from the lapse of five months before the goods were found in his possession.

The Judge said that if the question had turned upon identification of the trousers alone, be should have told the jury that he thought there «as no case for them; but undoubtedly the case was greatly strengthened, by the evidence of the prisoner's demeanour in resisting arrest and in afterwards abscondins. It was in the prisoner's favor, that there was a good deal of evidence that he had been regularly pursuing an occupation; and there was force in Mr Barton's remark, that it was very rarely that thieves did that. Thieves were, as a rule, men of weak wills—who did wrong because they had not strength of will to keep them regularly at any work. He (the Judge) put it to the jury whether the trousers were not well identified; and he said that he did not see the slightest ground for suspecting the evidence of Peddy. He recommended the jury to discard one circumstance as to the prisoner's hislory, which had slipped out in evidence. The prisoner might have been a ticket-of-leave man ; but he might, also,-have taken to a honest course of life, and there was a good deal of evidence to show that he had. At any rate, no previous conviction had been proved ; and the jury should consider the ca?e solely as it was affected by the identification of the trousers, and the violent behaviour of the prisoner and his subsequent absconding.

The Jury were absent from Court about half-an-hour, and then found the prisoner Not Guilty.

There was a separate indictment for receiving theproperty alleged in the previous one to have been stolen; but the Crown Solicitor said that he did not propose to go on with it.

The Judge said he thought that it would be useless to go further. Was there any other charge against the prisoner.

The Crown Solicitor said that "White was at present undergoing imprisonment; and a bill would be presented to the Grind Jury on Wednesday, relating to- articles found in White's house by Farrell. There being no other case ready, the Court was adjourned at two o'clock.