THE WEDDERSPOON CASE.

Otago Daily Times, Issue 10619, 14 March 1896, Page 2

THE WEDDERSPOON CASE.

THE BENCH DISAGREE.

At the Police Court yesterday Messrs G. L, Dennistonand J. Wright, J.Ps., sitrt 10 a.m. for the further hearing of the charge preferred against Andrew S. Wedderspoon of stealing a cheque for £10, the property of A. Briscoe and Co. '

Mr Solomon, speaking for the .defence, submitted that the information should be dismissed It seemed to him that the duty of the justices was tliiai: Any case in which there was no'reasonable probability or a jury convicting they would dismiss. Ot course they did not try the case It wus not for them to say whether the prisoner w.»s guilty or not guilty. As an instance of that, he mentioned that in a recent case in which he was engaged before Mr Hawkins,1 S.M., the magistrate considered the evidence for the prosecution so slight that he dismissed the case. Counsel wouH pus one or two reasons before the bench to show why they, as sensible men, should dismiss the information. The question was. Is there sufficient evidence that Wedderspoon stole the cheque ? If they found that Wetlderspoon did not account for it, that was not tho question. The question was Is there evidence that the man.intended to misappropriate it ? Andcounsel submitted there was none whatever. There was no attempt oa his part to conceal the position. It was patent to him that^ the matter must be discovered by the firm during the time he was away on his trip, and that it would be reported to him in the ordinary way. 'J herefore, the usual elements of embezzlement or theft were entirely wanting, the first of these being concealment. There was no evidence to show that the man's intention was to steal. Of course it was impossible to keep out evidence of transactions of a similar nature, but it did not follow that because a Man was guilty of one crime he was guilty of another. The bestevidence their Worships could get was that of the roan who was best able to judge in the case aud the man best able to judge whether Wedderppoon's intention was guilty or innocent was Mr Hugh Macneil, jun. Ec was the man who was intimately connected with Wedderapoon in his business; no man could tell a3 well as he could whether the man was guilty or innocent; aud counsel did not believe for a moment that Mr Hugh' Macneil was such a man that, if he had belisved that WedderEpoon was guilty, he would have undertaken the course he did undertake. He never would have taken the money back in the first instance, and would not have allowed tha man to go away without a threat of prosecution, and at the last moment have agreed with him that the case should be withdrawn, a3 ha did. Mr MacneU's actions were consistent, only with his belief that'the man was guilty of irregularities, but was innocent of crime. That evidence, coupled with the fact that there was no intrinsic evidence of dishonesty, was sufficient to show the bench that it was their duty to dismiss the charge. '

Mr MacGregor eonteaded that if their Worships 1 took it upon themselves to dismiss the case they j would be departing from their duty. After laying, j before the beach the opinions of Mr Justice John- ' stoa on the duty of "mssistt»te<i 'ifcou&ael' to say that in the present case not only was there ! abundant evidence before their Worships to go a jury, but the offence had been proved absolutely. It was impossible physically to prove that a man intended to appropriate money' unless he was actually seen to dispose of it in such a way as to be inconsistent with ifae proper disposal of it; but when, as in this case, tlie mm had had the money for months, had apparently used itforhisown purposes, had failed to account for it when taxed with it, had made at least two false statements regarding it, did not include it in his month's accounts or in the mouth's afterwards, and when it was clearly proved that on other occasions he had done exactly the .same thing—appropriated money belonging to his employers—it was simply ridiculous, counsel submitted, for his friend to cite any case in which, as he said, the evidence was so slight and slender as not "to justify conviction. The evidence in this case was absolutely conclusive, and no jury could decline to j convict a man on such a charge, and certainly no j justice of the peace could decline to commit. The evidence clearly showed this: that Weddeuspoon did receive the money on behalf of the firm; and that ha was bound to uccount for it the same, day and to remit it, but he did neither. : Instead of that, he cashed the cheque and put the tuouey in his pocket. On the question which ristoraUy arose. Did he do this intentionally, or, as he said, practically by accideot? the subsequent acts of the prisoner were aU-impoctant, and the subsequent declaration of the prisoner was allimportant. What did be say when taxed "with i the mattar—not on the apur of the moment, but j on Mr Macneil'a return to Dunedin, when ho had had a week to make up a piansible story to account > for the inexplicable occurrence? He said he j wanted the. money, and cashed the cheque, but j on his own figures it was, clear he had abundant cash in hand—the cash he had collected—to pay all his expenses without. cashing the cheque at &U, and, as Mr Macuuil saidj he could have used ] that cash. That was iio number one. Then he i was asked why he did not mark it donln, j and here lie number two came in. Be ] said he had an old pocketbook, and that he j had discontinued it. How came it, than, that in his return sheet thore were included ! amounts which were received prior and subsequent to this cheque, and how conld he possibly have entered the one aod failed to enter tho other? Then came lie number three. After telling Mr Macneil these two stories, Mr Macneil asked bim: "If that be so, Wedderspoon, how did you not discover when you balanced your cash oh the 31st of the month that you hud a considerable sum over?" Weddenspoon replied that he bad a sum over, and that he could not account for it. Was that credible ? Did this intelligent, smart I traveller, on discovering this money over, Bimply j put it in his pocket and say nothing at all to the | bookkeeper about it? Then, if further evidence j were wanted to establish conclusively that this wns not an accident, but was in pursuance of a system, it was clear that the transaction with Crai? supplied the link. In that case.it was equally clear it could .not have been a mistake; I it must have been in pursuance of a deliberate pbra of using the fine's money. What he did was plain: He got two cheques from Craig, 'irad Ms duty was to advise receipt of them and to . forward them to the head j office, but instead of doing that he took them to Balclutha, where he cashed one and j sent the other to Dunedin, saying nothing about the first ono until tha next month's statement was put in. Of course, he had the use of the fitia'B money for "that time. That could have been made the subject of another charge if the prosecution had wished.to oppress the man or to be vindictive. As regarded the embezzlements of years ago, as. Mr Moc-»cil said, they were committed in exactly the ssme way. There was no dispute as to the fact that the man was guilty at that time of a system of elaborate fraud, that he was discovered,.that he was forgiven, and that he was treated kindly, and by way of repaying the kindness of his employers he turned round and robbed them again. For thesecond time he was forgiven, for the sake of Ms respectable family and his relations, and he turned round and signed a letter which, after the Btory Ins counsel gave to the court, seemed to bear a falsehood on the face of it. He sigued a letter which showed he was cither a poltroon or a liar—counsel did not know which. He said: " I best to intimate to the public that the story in circulation to the effect that I have been harehly treated by my former I employers, Messrs Arthur Briseoe and Co., is jalse. During my career with this firm, up to and at the I time of my dismissal, I was always treated with j the greatest kindness and consideration; and I I have to admit that my summary dismissal was perfectly justifiable, and was brought abont entirely by my own faaita and failings. I desire it to ba known that I did not intentionally misappropriate the firm's money." If that statement had one word of truth iv it the whole theory of tho defence must crumble to the ground. The defence was that it was a mistake, an omission, a blunder, and that Wedderspoon was badly treated in being dismissed by Briscoe and Co. for doing such a thing. Here, two days mo, knowing the charge was impending, he signed a ; statement in which he admitted he was treated ] with kindness and consideration, that his sum- | mary dismissal was perfectly justifiable, and was < brought about by his own faults and failings. That could have only one meaning. 'If it were true, as suggested by Mr SolomoD-yaltuouiih there was no evidence of it,—that this was only an accidental slip, and an isolated slip, then j there could be nodoubt Wedderspoon was harshly j treated, and was not treated with kindness and consideration. So that if the latter were true Wedderspoon's previous story was false. And when they examined the terms of his first conf?saion what did they find? "I have to confess that during the past Bix or eight months I have on various occasions appropriated to my own use moneys which I had collected for the firm." That was not an isolated transaction. It wa9 a system of fraud going ou for six or eight months, and counsel had no doubt when' the hooks and affairs of this young man were thoroughly gone into, as they would be .before the trial came on, a Bhnilar 6Ysten» would bo discovered, and a similar-

state of things would be found! that he had been " deliberately robbing a firm which lie admitted liad treated him with kindness and consideration. ■. Counsel regretted that bis friend had seen it to ba his duty to attack private individuals and a firm in a manner which h«(M.r MacGregor) considered . was quite uncalled for and unjustifiable. Of course, counsel had great license, but it was a pity when that license was abusijd. It was the old storr, however-^a bad case, abuse the other side;

lint counsel ventured to say that the causa of j nstico had not been advanced by the scenes which took place in the court yesterday, and Wedder£>poon b case had not been advanced one whit by Ihe attack made on persons connected with the firm. To say that Eri3coe and Co's business, which: extended all over the world, could be compared with that of a firm lileo Thomson and Bridger was absurd. Counsel submitted that hardly one word of his friend's address to-day or his crossexamination - yesterday was directed to the point at issue, and that point when the.wholo matter had been sifted would be found to be the small one as to whether this man did or did not misappropriate the choque. On that question there could be but one opinion. All their Worships had to do was to day whether there was evidence which would justify them ia sending the case for trial, and counsel submitted that if ever a man had been proved guilty of embezzling it was this man. . ■■;

Mr Solomon rose to reply. Mr MacGregor contendedthat Mr Solomonhad no right to reply. ,■■-. .-, . ■ Mr Denniston thought Mr Solomon hadfinished his address. , ~. ■ . ; • . . '

. Mr Solomon said his Worship had misunderstood the position.

MrDenniston : If a a pity you did not say you were speaking only to one point, and that you meant to give your main address afterwards.

Mr Solomon claimed the right' to reply to what his friend had said. ..: ; "' , ,

Mr Deuniston said Mr Solomon had- bad his opportunity and Mr-WacGregor had bad bis, but rather than do anything to prejudice the accused he would give way to his colleayne and waive Ms objection. :.' ' : '

Mr Solomon thought it was-necessary that some reply should be made. The most important point, in the-case was this : Is this prosecution honest? Is it founded on* belief of the prosecutor as to its honesty^ and even if it is founded on a belief as to its honesty is that belief justified by fact ? Counsel again said deliberately that the prosecution was not honesr, that it was dishonest, and in the second place that it was not warranted by facts. To show whether it was honest or not, his friend was the representative of justice—in the meantime, the Crown prosecutor. To show whether his friend vr»« trying calmly and dispassionately to obtain justice, ccuusel need, only refer to the epithets ha showered on the defendant. He called him a liar, an embezzler, a thief, a poltroon. He Said the defence was ridiculous and preposterous, and ha finished up an attempt ■at an honest prosecution by making an advertisement for Briscoe and Co. at the expense of Thomson and Bridger. He (Mr Solomon) asked :

How did that statement of the prosecution compare with his statement ?. H« waß charged wiib. making an attack on Ar Macneil. What had he done ? He had attempted to ahow that Mr Macneil did not commit a felony. ■ If Mr Macneil honestly believed Wedderspoon was guilty, of a felony, ha himself, by what ho aid. was guilty of compounding a ielony, and counsel: did nob .believe thro Mr Macneil was guilty of that. Then, Mr Macneil' did not take any proceedings against Wedderspoon until he foundthat he was in the employment of a rival firm, and he then took proceedings against him. Mr Ifaoneil said he did not taka these proceedings because Wedderspoon got employment in a rival firm. : What was the object 1 Counsel asked Mr Macneil, and Mr Macneil said he took the proceeding* because .certain untrue statements had been in circulation about the firm which he deemed it his duty to contradict; And having made up his mind to clear the firm by bringing the matter before ths public, be gave Wedderspoon to understand that, if he cleared out of the country the proceedings would be put a stop to. ' " ■■'". Mr MacGragor : Absolutely untrue. M? friend is misstsrinc the trnth. ■ ' ; '

Mr Solomon contended he was right. MrMoeneil said that Mr Wedderspoon, sen., might reasonably have inferred from the conversation between them that if his son left the district—in other words, left Thomson and Bridget's—the proceedings would have been abandoned.' If Mr Macneil's intention had been to bring the matter before the public to clear his firm what would have been the position-? If Wedderspoon had crawled out of Otago, and had crawled out of , Thomson and Bridger's, nothing more would have been heard about the good name of the firm. '■' But ~ ' when Mr Macneil frond that Wedderspoon did' not leave Thomson and Bridget's he*broughttbe information against him. It was clear that if Mr Macneil could have got out of Wedderspoon merely a confession he would then have withdrawn the proceedings. Then the prosecution was not honest, and Mr Macneil did not believe the prisoner was guilty of a misdemeanour. It was clear, therefore, that the defendant should not be put on his trial. Their Worships, of course, had "only to Gay whether there was a reasonable_ prima fade case against the man, and ; counsel said the bench could not hold that there was. The point was : When did Wedderspoon steal the-last .£10? Here, on the night before the prosecution, in Mr Macneil's own handwriting, ■ was a letter which he himself was going to put into the newspapers in which this was. stated: " I desire it to be known that I did not ititentioasßy misappropriate the firm's moneys." Those words were written in the letter by Mr Macneil. Mr MacGregor :At Wedderspoou's request. .. ' Mr Solomon: Put it sa you like. MrMaensil himself wrote a statement, which he wanted Wedderspoon to Bigs, to the effect that he had , upt appropriated tire money. : Mr MaeGresor: That is not so. Wedderspoon was geing to pat it into tiie papers. You can see the order. . . ■ . • ... ■

j^Mr Solomon : Pardon me. Mr Macneil-held.in, flßsftfftnd tile night before the prosecution? a statement which he wanted Wedderspoon to sign,*" which Wedderspoon did sign, and which be was; going to advertise in the pipers next day—a ' statement that Wedderspoon did not intentionally appropriate the moneys. Mr Macneil said lio w?s satisfied that Wedderspoon should put that into the letter. He himself was going to-put the letter into the papers, and. the next day he came to court and asked the bench to say it was not trne. . Could any language be too strong to describe the action of a man who said in toe morning that > Wtdderspoon did not curamit the theft and in the afternoon that he i(id commit it? Therefore, counsel was compelled to say, ia the first place, . that the facts did not disclose an offence, and, in the second place, that Mr Macncil knew it, and had known it throughout the whole affair. The defendant should be discharged. The Bench consulted for four minutes, after which Mr Ltennistonssid be was sorry to siy that the Bench could not »gree in thecase. It was not their business, he uudsrsfcood. to give reasons. Mr MacGiegor said that that being co another justice should be called in. , I Mr Solomon submitted that it was not the duty I of the b»iich to take any further step. - They were | jwncVm officio. . | MrMacCSregorsaidtheproper course would be !to call in the raaffißtTata and let him act as the ' j third member of the, ljench. Counsel qnite. realised a possibility .•'f t,bi« occamng, and he- .; wanted the csse heard before the magistrate, bnt, \ unfortunately, Mr Can:"1 could not take it. He (Mr MacGregor) was well aware of the fact {hat the accused had a great many friends in town, ' ; and such a case as this was more properly tried \ bofore the magjstratn than before jnstices. It-was then agreed to adjourn at 2 o'clock, and on resuming, Mr MaeGregor quoted tha law on the subject, and contended that their Worships Bhoald sdjourn the h*orins:, 'm that the matter might be I'heatd eithw before thair Worships with asaiatj ance, or before a frah bench entirely. It was obvious that the two gentlemen on the bench were unfortunately unable to come to a conclusion, and counsel wonld. suggest that an adjourn! raent should be made, eitlisr for a week or a i fortnight, and retry tiia caaa than with fijicb' justices as might be present. Mr Solom»n said that what was ablted was a mere shilly-shallying of justice. The bench could • do nothing, and. the case now dropped. If Ma { riead or his clients wished to take further steps ' they could do so at»ny time. At present the cane came to an end, and the accused mast bo discharged. N Mr MacGTegor renwriced that if tbe case was dismissed a fresh information would be laid, and Wedderspoon would havo to enswer the charge again. . ■ After consultation with his colleague, Mr Denniston said the Boach would let the case remain where it was. As Mr Solomon had pointed out, if the prosecution wished to go on with the matter they coald lay a fresh informition. ■■>,'■ Mr MacGregor : That will be doao forthwith, A fresh information was subsequently laid;

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