SUPREME COURT.

Otago Daily Times, Issue 8387, 10 January 1889, Page 4

SUPREME COURT.

CRIMINAL SESSIONS. Wednesday, January 9. (Before His Honor Mr Justice Williams.) SENTENCES. Kirn Hoch (aged 34) and Kin Hee (37), convicted an Tuesday evening of robbery of gold from a sluice box at Naseby, were brought up for sentence. Dr Fitchett addressed the court in mitigation of the sentence. He pointed out that the prisoners were first offenders, and produced accounts for the ourpose of showing that from December 1887 to November 1888 Kirn Hoch had got water regularly from the Mount Ida water race. Beyond the verdict of the jury there was apparently no suggestion that prisoners belonged to the criminal class.

His Honor: Is anything known about the prisoners, Mr Haggitt '{

The Crown Prosecutor: There are >io previous convictions, your Honor. They have both been suspected thieves for a long time. That is what the police report says.

Kis Houor: The greatest punishment that can be inflicted on thu presunt indictment, which is one for simple larceny, is three years' penal servitude. It seems to me that the offence of which the prisoners have been convicted—and, I thiuk, properly convicted—is about the meanest kind of theft, and I really see no reason why they should not receive the greatest punishment the law allows. It is also a kind of oti'ence which is very difficult to track. It appears that the prisoners, according to the police report, have been suspected thieves for a long time; but apart from that, I should say their committing a crime of this sort shows that they were uot new hands to crime. The sentence of the court on each of them is three years' penal servitude in the colony of New Zealaud. Ou the sentence being explained to them

lirough an interpreter,

Kin Hee said that the reason the police had long suspected them was because of the bad feeling shown to them by the European population of the district.

Kirn Hoch complained that he had been convicted for doiug nothing, and had been sentenced to three years' imprisonment. He was satisfied to die by hanging, but not to serve

three years on the present charge. As to the boots, on which the case for the Crown had rested, the constable had taken them from his hut, and with them made the footprints near the water race. His Honor: Quite so. (To the gaoler:) Remove the prisoners. CATTLE STEALING. Andrew Edward Pitches, a young man, was indicted for having, on March 1, 1888, stolen two heifers, the goods and chattels of James Harley. The prisoner was undefended, and pleaded Not guilty. The Crown Prosecutor 6aid that the prisoner was charged under the indictment with having, on the Ist o£ March of last year, stolen two heifers belonging to James Harley. The prosecutor was a miner in the Lauder district, and he owned a piece of ground there, but did not occupy it himself. The ground was occupied by his son John, who looked after the place generally, and attended to some cattle belonging to his father, which ran on the farm and on some unsold Crown lauds immediately adjoining it. The evidence for the Crown would prove that amongst the cattle belonging to Mr James Harley were two young heifers.

These were running either on his farm or on the Hundred adjoining it, previously to March 1.

In December 1887 one of these heifers had beeu brought in and branded with the brand JH con-

joined, which was the brand used by Harley, although he had not registered it. A plain brand like that lusted, as the jury knew, for a very considerable time, and in all probability this brand must have been quite distinct so shortly afterwards as the Ist of March—just three months in point of fact, after it had been put ou. At that time the two beasts in question were running with some others on Government

land which was outside Mr Harley's farm. Shortly after that time they were missed, and nothing more was seen of them until the month of September followiug, when Mr John Harley,

in the course of making a search for them, found them on the ruu occupied by Mr John Pitches and his three sons, of whom the prisouer was one. One of the beasts at that time had upon it another brand—the brand of Mr Pitches —which it would be shown had been put on it shortly after the Ist of March. It also

bore Harley's brand—the JH conjoined. The heifer was not claimed by Mr Pitches

Mr Denniston: Is it suggested that any opportunity was given to him to claim it ? The Crown Prosecutor: No claim was made by any of the Pitches familiy to this beast, notwithstanding that it had Mr Pitches' brand on it, aud Mr Harley took it away without any opposition. The case, so far, was this : This beast of Harley's, bearing his brand, was running near

Harley's place, was taken away by some one, and not very long afterwards, still bearing Mr Harlpy's brand and the brand of another person, was found in the other person's possession. The inference to be drawn from that was perfectly plain. If the brand was plainly to be seen, and the beast was taken away aud found beariDg another brand, then the conclusion would be that there was sorcething more thau carelessness in the cise. It would be proved that this beast was driven by the prisoner a distance of fully 12 miles, and the jury would cousider whether it was possible the prisoner could have

driven the beast for such a, distance, in broad daylight, without observing that it bore the brand of anothor person. After the beast •was taken to Mr Pitches' farm it was kept there a day or two, and then branded with Pitches' brand, the prisoner taking part in the branding. The only question for the jury would be whether the accused could have taken these beasts under a bonajidc belief that they belonged to himself or his lather, or whether the brand beiug plainly upon them, as it was, he could possibly have been under that misapprehension. In addition

to this evidence, there would be evidence of a conversation between the accused and a witness named Baker, in which the accused told Baker that he was " going to do a get," and subsequently he said to Baker: " You won't split upon us about the cattle, will you?" Baker said that would be all right, and the prisoner, when going away, said: "Be sure not to tell anything about what; you know. We will be better Wends than what the ' slab' (meaning the policeman) would be." If the jury believed that that conversation took place, there could be no doubt what the prisoner's motive was at the time he drove away the cattle. The following witnesses were called for the prosecution :—John Harley (who, in cross-exa-mination, said that in order to be clear about the brands he had clipped the cattle to get the hair away, and that at first he had reeoguised one of the cows to be the older one, and one that was branded, but that subsequently he discovered it was not the branded cow), James Harley, William Fisher, mid Stephen Henry Baker. This closed the case for the prosecution, but at the request of Mr Denniston Constable Walton was called and gave evidence. Mr Deuniston, in addressing the jury on behalf of the accused, said that if the case involved merely civil rights he would not take the trouble to address the jury, as the case had practically broken down. But as the case involved a very serious charge against a young man in whose favour the witnesses for the prosecution had given evidence as strongly as possible, he must, to satisfy his instructions, go through the form of addressing them on the facts of the case. In order to convict, the jurors had to satisfy themselves beyond any doubt at all that it was absolutely proved tho accused took the animals mentioned, or one of them, with a felonious intent. To say that should be almost sufficient to settle the matter. The case absolutely depended upon the witness Baker. The accused could not givo his statement on oath, ami they were asked to ruin this young man's life on the unsupported evidence of a single witness, who was an accomplice, or else there had been no theft. This conversation, the counsel maintained, was entirely a bogus one. The whole case was that the beast was branded conspicuously when it was driven by the prisoner and the witness Baker, and the witness Baker swore that ho saw no brand upon any of the calves he drove up. From this the obvious conclusion was that there was no brand on the calves that were driven by the accused and Baker, and that Baker must have been mistaken in his identification of tho cattle, and Baker was the only witness who pretended to connect Andrew Pitches with the branded cattle. His Honor having summed up, the jury retired, and at 1.40 p.m. returned a verdict of "Not guilty." ,_.,.. , The accused was then discharged. EMBEZZLEMENT.

Alexander Heury Kinniinout was charged with haviug, whilst employed as the servant of Albert Domwell (butcher), embezzled the sums of 11s 5d aud 13s 9d on the 4th of May aud Ist of June respectively. The "prisoner pleaded "Not guilty, and was defended by Mr S. Solomon. Mr Haggitt, the Crown Prosecutor, conducted the case for the Crown. In empauuelliiig the jury 10 persons were challenged by Mr Solomon, and six were required to stand aside by Mr Haggitt. The Crown Prosecutor, in opening the case, explained the system under which the prosecutor conducted his business. Respecting the first amount the accused was charged with embezzliug, the leirned couusel said it would be proved that the prisoner had received the amount mentioned, that he had never accounted for it, aud that he made up his accounts without in any shape or way accounting for it, or mentioning that he had received the money. It would also be proved, from the accounts in the prisoner's handwriting, that on three days on which he sold meat to Mr Longwortb, by whom the money hud been paid, he had made no return for it, and that on five other occasions when returns of the quantities mentioned as sold were invariably wrong. The facts rcspi cting the receipt of the other amount of J3s 5d were similar, excepting that not a i-ingleitem of this amount was returned to Mr D jrnwell as ksving been fold on the days on whfch thr.y appeared in Kiiiuimout'ij account to the purchaser. In order to carry out these things thrre mvs1; !v.wt> '.v.-.i-u a yierKi.U-Av s>hih< of t >blv.'ty goipE: t"orw;'.rd from t'n.y to <l'y. )*•■ eoi.U not pcvMbly l*o tint. ii-. ■■:■>■■• i>wt, the payment t'ov which V.'iH ;'>-Ui'ow)i.'-'- '-■■''■ b' receipt ;<,ivon by t'ao. iii'i--,'! ■-, vivo i' rij.-t(;on on liv- i!-ys oi< which they were supplied, when uo returns

whatever were made to Mr Dornwell. It was

impossible for a man to forget, for so many days in the course of a single mouth, the fact that he had supplied meat to a certain individual; but yet if he did not forget the only other conclu-

sion was that he had wilfully neglected to report the fact of these sales in order that

he might safely collect the money at the end of the month and appropriate it to his own use, as they found he had done. The prisoner, by the system he adopted, managed to falsify everything and to defraud his master, proving that however careful people might be in keeping books of account, and however right all these things might go when people were acting honestly, yet when there was a dishonest inten-

tiou no amount of precaution could prevent fraud. If fraud could not be prevented, and they kuew it could not in connection in with governments and banks, where the systems were as perfect as money could make them, it was not at all unlikely that in the business of a retail

butcher it was not possible.notwithstanding any system that could be invented, for an employe to defraud his employer in the course of business. The facts that would be

brought before the jury were that the

sums of money mentioned in the indictment

were received by the prisoner in the course of his employment; that he had not in any way accouuted for them, and had not entered numerous items of meat supplied, and for which payment had been received. Evidence was given for the prosecution by A. Dnrnwel), Mary Ami Longworth, end Henry White. The witnesses called by Mr Solomon were Charles Allen, sec, Charles Allen, jun., E. G. Schlotel, and Robert Bain, and all gave evidence highly favourable to the character of the accused. Mr Solomon, in addressing the iury, said he felt confluent the jurors were satisfied about the merits of the case, and he asked them not only to find a verdict of " Not guilty," but to put an end to this unseemly controversy, for it was really not a trial, but a dispute between the prosecutor and the prisoner. The prisoner could not give evidence, but his story was that he had never at any time denied that he had received moneys from Mr Dornwell's customers, but he denied having embezzled a shilling of it. The explanation was that the system of accounts described had not beeu followed, and that mistakes had beeu made, but that no money belonging to his employer had been appropriated by the accused. The learned counsel then re-

ferred to the former prosecutions of the accused who had been twice acquitted/ by justices and once by a jury of what was practically the same charge, based on precisely similar evidence, 60 that virtually the prisoner was now being tried for the fourtt time for the same offence. It was surely time that this scandalous state of affairs should be put. an end to. The fact was, the learned counsel said, that it was the prosecutor, Mr Dornwell, who was standing upon his trial, and was insisting upon these prosecutions for the sake of his own reputation. It was all very well for Mr Dornwell to say that it was because of his (Mr Solomon's) eloquence that the accused had been previously acquitted, but that was only good as a joke. Did the jurors imagine ihat he could stand before them and hoodwink them sc as to make them believe that a guilty man was innocent ? He did not pretend to Buch persuasive eloquence, but only endeavoured in a straightforward way to put the matter before them, and allow them as men of the world to judge whether the accused was a thiei or not. Mr Dornwell regarded the previous acquittals of the prisoner as injustices to hinself, and no doubt when the present jury ro turned their verdict the prosecutor would saj the jurors were stupid, and their finding ai additional injustice. The learned counsel tlsi strongly commented upon the fact that th< prosecutor had admitted that after he had dis covered, as he alleged, that Kinnimont had beei robbing him, he was willing to allow him ti work out the amount due. At the close of Mr Solomon's address ther was some slight applause by the people in th body of the court. His Honor: Fellow citizens, I do trust tha iv a court of justice there may be no demon strations of applause or the contrary. I woul earnestly ask each of you, as a good citizei whatever his feelings may be, to refrain fror giving expression to them in what must on r< flection seem to be a wholly wrong way. I hop I shall not have, in the course of this case or i the course of any other case, to comment upc any expression of applause.—His Honor the summed up the case for the jury. Before dea ing with the evidence his Honor Baid: " I nee hardly say that you have nothing to do wit the character of the prisoner's employer. Tl prisoner's employer may be a very goc employer or a very bad one; that has nothii to do with the case, nor indeed has anythii that has taken place previously to do with tl case. You have to consider the case upon tl evidence before you, and upon what you ha heard from the mouths of the witnesses After going through the evidence generally ai referring to the evidence of character called ( | behalf of the accused, his Honor concluded follows: —" You had better, gentlemen, in 100 ing at the case turn your attention particulai to these omissions to enter and compare the with the accounts, and just see what .you c make of them. I do not know that I ne trouble you further. In order to find t prisoner guilty you have to be satisfi beyond all reasonable doubt that he receiv these moneys and in fact stole them, and j have to look at; all the evidence to see whetl it leads you to that conclusion or not. A! have said, the principal evidence consists in t fact that he undoubtedly did receive the mom and that he did not account for them, and tl he did not make a return to his employer of I items supplied on credit, which items make the total of these accounts he collected. Ihi no doubt you will consider the case carefu look at all the circumstances on both Bides, i arrive at a satisfactory conclusion. The jury retired shortly after 5 o'clock, s returned after an absence of three-quarters an hour with a verdict of " Not guilty." The accused was then discharged, and The court rosfi.