SUPREME COURT.—CRIMINAL SESSIONS.

Otago Daily Times, Issue 6441, 4 October 1882, Page 3

SUPREME COURT.—CRIMINAL SESSIONS.

Tuesday, 3rd October.

(Before his Honor Mr Justice Williams and a Common Jury.) SENTENCES.

John Madden, John Mason, and James Hartley, who were convicted upon a charge of robbery from the person at the Porbury racecourse, were brought up for sentence. Mr Stout: I submit to the Court that there is no evidence against the accused Mason of any robbery from the person. His Honor: What do you ask for, then ? Mr Stout: I ask that your Honor should reserve the point whether there is evidence to sustain a conviction.

His Honor: That is the only way in which you can put it now. You cannot ask for arrest of judgment, because the objection is not apparent on the face of the record.

Mr Stout agreed. It would no doubt have been quite compHent_ under the indictment to have convicted the prisoners of simple larceny, but the jury had not seen fit ttf so find with regard to Mason, and had returned a verdict of guilty of stealing from the person. It was clear on the face of the evidence that Mason did not steal anything from the person; therefore he could only De guilty as a principal in aiding and abetting the person whom the jury found committed the robbery. Now the prisoner Mason was not standing alone; there were others in the booth quite close to "where the scramble occurred. Then there was no evidence of any prior arrangement. In the various cases summed up in " Bussell on Crimes" some evidence was giyen of Borne .prior arrangement, but in this case there was no evidence whatever of any prior arrangement. The evidence was simply this—that Madden and Leckie.(tha prosecutor) had been together for some time, and that Mason and Hartley came into -the booth subsequently. Mason could not consequently have been present as one of the party, and there was not a tittle of evidence to show any prior arrangement to rob Leckie. There being no evidence tending to show a prior arrangement,' he • (the learned counsel) submitted that there could be no evidence that Mason was present for the purpose of aiding in ;the robbery. The jury, in so determining, had simply done wrong. It was clearly laid down in the authorities that there must be some participation in the matter so far as two things are concerned —some common design to rob, or some participation in the act. In this case these essentials were wanting; therefore he asked his Honor to reserve the point for the Appeal Court to say whether there was evidence to sustain the conviction.

Prisoner Hartley : I submit, your Honor His Honor: Mr Stout's observations have no reference to your case. If you have anything to Bay you will have an opportunity of saying it hereafter.—l do not think, Mr Stout, it is a point I ought to reserve. I have taken an opportunity of considering the matter since last night, and I think there was plenty of evidence to go to the jury in support of the offence laid in the indictment as against the prisoner Mason. In order to support the case against him, there must" be, no doubt, evidence, as you say, that he was present aiding and abetting Madden in the* robbery, and the jury must be satisfied that what was done by Madden was in pursuance of a common design to rob the prosecutor; in short, that there must have been a community of purpose between Madden and the other two prisoners. I think that, so far as regards Mason, the fact that he was shown, immediately the robbery was committed by Madden, to have at once gone on the ground and scrambled for the money, and that afterwards, when challenged by the prosecutor on the course as to' the money, he at once ran away, is sufficient evidence for the jury to conclude that there was a community of purpose between him and Madden.

Mr Stout: Will your Honor allow me to make one remark? Mason was apparently the only person who remained on the course afterwards. He was found on the course at the grand stand.! His Honor: All that is a question for the jury. The evidence of the prosecutor is that when he asked the prisoner about the money he ran away, which the jury could believe if they chose. Ido not think it is necessary in a case of this kind that there should be direct evidence that the parties were seen to lay their heads together for the purpose of concocting the scheme. A nod, .or wink, or nudge would be amply sufficient to establish a community of purpose. I think the fact that Hartley and Mason were present, and immediately after Madden pulled the money out of the prose cutor's pocket they began to scramble for it, is sufficient to enable the jury to conclude that there was a prior design to rob. That being so, I think it is clear that I ought not to reserve the point. The prisoner Madden, on being called upon, said he wa3 24 years of age, and made a statement flatly contradicting the evidence given for the prosecution in several particulars, and concluded as follows : " Your Honor, there is a day coming when each of those witnesses who gave evidence yesterday will have to account for the lies they swore on purpose to take our liberty. Unfortunately there is one or two previous convictions against me in the Resident Magistrate's Court. I hope your Honor will put no weight on them." Mr Haggitt said there were four previous convictions against the prisoner—one for vagrancy, one for larceny, one for assault, and another for wilfully damaging property. He was informed by the Inspector of Police that the three prisoners were specimens of the larrikin class, and gave a great deal of trouble to the police. Mrs Stout asked that as against Mason evidence should be given on oath regarding the statement made by the Crown Prosecutor. His Honor said that in passing sentence he only took into consideration the fact of previous sentences.

Mr Caldwel) identified the prisoner Madden as the person referred to in the warrants of commitment.

His Honor : Prisoner Madden, you appear to have been convicted four different times at the Resident Magistrate's Court, and on one occasion you were convicted for larceny. The sentence of the_ Court is that you be kept in penal servitude in the Colony of New Zealand for the term of three years. John Mason (aged 31) and James Hartley (aged 22), on being called upon, asserted that they were innocent. No preyiois convictions were recorded against the prisoners, and they were each sentenced to six months' imprisonment with hard labour.

BURGLARY. William Ahem was charged with having, on the 2nd of July, broken into and entered the counting-house of Keith Ramsay, Dunedin, with intent to steal goods and chattels therefrom.

Mr Haggitt conducted the case for the Crown ; and Mr Stout, with him Mr F. Chapman, appeared. for the prisoner, who pleaded Not guilty. Mr Haggitt opened the case with a statement of the evidence for the prosecution, the principal part of which, he said, would rest upon the testimony of the man Jones, who was an accomplice of the prisoner in the commission of the offence. The law, the learned counsel remarked, allowed the testimony of accomplices to be taken as against those who were concerned with him i n the commission of crime. This was distinctly allowed by law, but it was the practice of judges to caution juries against acting upon the uncorroborated testimony of any accomplice. Of course juries always regarded with a considerable amount of respect everything that fell from the judge who presided at the trial, and very properly so. He did not wish to say anything which could convey the idea that he wished them to depart, or would for a moment presume to ask them to depart, from what was the established rule upon the subject, but he would say that the consideration of the testimony of witnesses was entirely -a matter for the consideration of a jury. If they were satisfied, after hearing the evidence of Jones, of whom he had spoken, that he was the witness of truth ; if ha gave

his evidence in such a way as to impress them with the conviction that his testimony was truthful, and such as they could safely act upon, then they were perfectly at liberty to act upon it, and no Court in the world would upset their decision. Keith Ramsay and his chief clerk, James Beadle, gave evidence of the fact of the counting-house having been broken into and entered on the night in question. Wrn. Jones, who had pleaded guilty to a charge of breaking and entering the countinghouse, gave evidence, in which he stated that the prisoner had been his accomplice in the commission of the offence charged. Cross-examined by Mr Stout, witness said that when arrested Detective Walker told him that Williamson and Ahem had made statements accusing him of crime, and that it would bo better for him (the witness) to make a statement. The detective did not tell him exactly that if lie did so he would get off, but he (witness) thought he would get off lighter. He had been in gaol twice in Tiniaru for larceny. This closed the case for the Crown. His Honor expressed the opinion that there was no evidence to corroborate the testimony given by Jones. Mr Stout said there was not the slightest corroborative evidence, and submitted that his Honor would follow the usual course laid down by all the eminent judges in England, and direct the jury they ought to acquit the accused. His Honor : No doubt I arri bound to do that. There is corroborative evidence that the crime was committed, but that is not the corroboration wanted. There must be corroboration that the prisoner was connected with the transaction, and of that there is not the slightest corroborative evidence. I must advise the jury not to convict the prisoner, but must inform them that they can do so if they like, and that if they do their verdict will not be set aside. Mr Stout briefly addressed the jury, and submitted that they would certainly take the advice of the Court—that it would be unsafe

to convict-upon the uncorroborated evidence of an accomplice. Hfe could only say that he regretted exceedingly that the Crown Prosecutor had thought it right to address the jury in the terms he had done.

Mr Haggitt: I addressed them in exactly the same terms as his Honor haa done, Mr Stout supposed the object of Mb learned friend was to ask the jury not to take the advice of his Honur, because if that was not his intention, he should have withdrawn the case from the jury. They must conclude either that the evidence of the accused was untrue, or that he had been deceived by Detective Walker. The object of Jones was perfectly plain : he expected to get off lightly by giving evidence against others, and he had an interest in saying what was untrue. He would not insult the jury by assuming that they were at all likely to act contrary to the advice of the learned Judge, and contrary to the practice of juries in such cases for hundreds of years.

His Honor directed the jury in the manner he had indicated he should do—viz., that it would be unsafe to convict upon the uncorroborated statement of an accomplice, although it was in their power to reject his direction in this case if they chose to do so, and their verdict could not be set aside.

The Jury at once returned a verdict of "Not guilty." Mr Haggitt said that under the circumstances it would be useless to go on with the other cases, and he would therefore have the prisoners arraigned, and offer no evidence. The prisoner Ahem was then arraigned on two indictments charging him with breaking into the office of the Otago Daily Times, and into the Pelichet Bay railway-station. No evidence was offered, and the Jury, as directed, returned a verdict of " Not guilty." The prisoner was then discharged. James Williamson was charged with breaking into the Otago Daily Times office and into the Pelichet Bay railway-station. Mr Chapman appeared for the prisoner, who pleaded Not guilty. The same course was adopted in this case. The Crown offered no evidence, and a verdict of "Not guilty" being returned the prisoner was discharged.

UNLAWFULLY SHOOTING. William Edie was charged with having, on the 30th of August last, at Merton, unlawfully killed a heifer, the property of Robert Allen.

The prisoner pleaded Not guilty, and was defended by Mr Dennis ton. Mr Hageitt stated the 'facts relied upon by the prosecution, from which it appeared that the prosecutor heard a shot fired, and on going in the direction-from which the sound came he saw one of his heifers in a dying state from a gunshot wound. The accused, who was about two chains from the animal, denied having shot it, but claimed and took away a gun which was found close by, and said that he had fired away from tho heifer. The heifer was on the land of the accused when shot.

Tho evidence of the prosecutor and of two other witnesses was given. In cross-examina-tion the prosecutor said that he had been friendly with the prisoner for about 22 years, that they were shipmates, and had been neighbours for 12 years ; but the accused had threatened twice to thrash him.

Mr Denniston asked his Honor to withdraw the case from the jury, on the ground that there was nothing to show that the heifer was not killed accidentally. His Honor declined to withdraw the case from the jury. Mr Denniston then addressed the jury. The case he considered a most remarkable one. On the inconclusive circumstantial evidence they were asked to find an apparently respectable settler guilty of an offence which would render him liable to 14 years' penal servitude. A more ridiculous case had never been presented to a jury, and there was no direct evidence of malice.

His Honor having summed up the case, The Jury retired, and in 10 minutes returned a verdict acquitting the accused.

| EMBEZZLEMENT. Moses Akerman Price pleaded Guilty to three indictments charging him with embezzling various sums of money, the property of Lodge Otago, A.0.D., of which he was secretary.

AJr Macdonald: In this case I have been instructed to appear for the prisoner, and to point out that for many years he held a very respectable position here. He was for many years in the Bank of New South Wales, but some time since he gave way to drinking habits, and there cannot be much question that that has been the cause of his present offence. This is his first offence, and your Honor will see on looking at the depositions that the sums he embezzled were very small. His Honor: Yes ; the aggregate appears to be small.

Mr Alacdonald: Your Honor will further see that sum of these small sums were not paid to the prisoner inside the Lodge, where his duty was to receive them, but that some were paid him in the street and others in the 'VVorking Men's Club; and to persons of the prisoner's habits th 3 receiving of these small sums in that way-would be some temptation. I ask your Honor to take these facts into consideration, and also that prisoner has been in gaol since July 31st last. His Honor: Prisoner,the offence of embezzlement by a person placed in a position of trust as you were stands on a different footing altogether from other offences. More especially is that the case where the position is one held in connection with a friendly society. We all know that the funds of these societies are drawn from the earnings of the working classes, and it is therefore essential that their funds should be efficiently protected by the law. I shall, however, take into consideration the circumstance that you have pleaded guUty, and also that the aggregate of the sums you were charged with having embezzled is small. The sentence of the Court is that you be imprisoned in the common gaol at Dunedin on each indictment for the term of two years, and kept to hard labour, the sentences to take effect concurrently. BOBBERY WITH VIOLENCE.

. Thomas Keating was charged with having, on August 16tb, assaulted James Allen with violence, and with having stolen from him a purse containing £8.

The prisoner pleaded Not guilty, and was un. defended.

The evidence showed that prosecutor came into town on the night of August loth, and fell in- with the prisoner; that they had several drinks together, and when opposite the policestation, in Maclaggan street, about 2 o'clock next morning, the prisoner struck prosecutor, partially stunning him, and stole his purse.

The Jury, after retiring for a short time, found the prisoner " Guilty." The prisoner, when called upon, said he was 27 years of age, and that he had got into trouble by drinking with the prosecutor's friend. He had been eight years in the Colony, and had never been before a jury previously. ,

Mr Haßgitt said the prisoner was known to the police as an associate of bad characters, and that he had been convicted for minor offences.

The prisoner called Mr O'Meagher (solicitor), who happened to be in Court, and Mr O'Meagher deposed that he knew the prisoner to be a hard-working man, but said he believed the statement of the Crown Prosecutor was correct, and that the prisoner spent his earnings in the company of disreputable persons.

His Honor sentenced the prisoner to 12 months' imprisonment, with hard labour. BUBGLARY. William Jones (aged 19), who had pleaded guilty to several charges of burglary, was brought up for sentence. Mr Haggitt said he was informed by Detective Walker that the prisoner must have misunderstood what was said to him when arrested, and that the detective would like an opportunity of explaining the matter. Detective Walker was then sworn, and his Honor asked him if what had been stated by the prisoner, in giving evidence against Ahem, was correct. In reply, the detective said that when he arrested Jones he told him the charge, and he at once replied, " I do not care ; I will tell you the whole truth about it." He (the detective) told the prisoner he had arrested Ahem and Williamson, and that they had said they were all living in a house together, but he did not say that they had pleaded guilty, or accused Jones of any crime. Mr Haggitt said the prisoner had served two short sentences for larceny. His Honor : The sentence of the Court is that you be imprisoned in the common gaol at Dunedin, with hard labour, for two years on each indictment, the sentences to take place concurrently. ADJOURNMENT. Mr Denniston asked that the case against Albeit Edward Morgan should be allowed to stand over, as the wife of the principal witnesß for the defence had died recently, and was to be buried on Wednesday. His Honor-thought that under the circura-

stances an adjournment, if practicable, should be granted; and aa the Crown Prosecutor raised no objection, the case was ordered to stand over until Thursday, The jury and witnesses were then dismissed from attendance until 10 o'clock on Thursday (to-morrow) morning.

The Court then rose.