SUPREME COURT.

Otago Daily Times, Issue 11050, 2 March 1898, Page 4

SUPREME COURT.

CRIMINAL SITTINGS. Tuesday, ;Marchl. '

(Before'his.'Honor Mr Justice Denniston and a •'■■. ' common jury.) -. .." .■■■' .•" .':■'.'' :■: ""^THEFT. . -. \ . .■.. Thomas Chatterley, who on the previous day was convicted of ; the theft of a watch aud chain, w»s'again brought before the court". . • Hi- Honor said he; hart cot had time to go into the questions that had been raised as to whether .Cooper having givah evidence on his own behalf, thac was evifl-nce as.ag»inat Cbatterley, and as to whether.tha judge ought not to have told the jury to disregard it.,: > .'.;..:■ ■-■.•'. ...•.'■'. , : ,- Mr Ohapmati (appearing for the Crown) called hi* Honor's attention to >cction'39B-of the Code, which, to his:mind, conveyed the meaning that as the accused; in:this case had not asked to be tried .separate!^/ they must take the consequences of being made competent witnesses. He had not' cross-examined with the object of increasing tbe weight of, evidence, against the pri-oner, but one question which he put must have had that tendency. ' He referred to the question as to whether Chatterley' showed the place where the goodi? were pawned. His Honor said that he did not th'nk Mr Chapman had pressed that unfairly. Iv any case therel .was .not, niuch, in it. Addressing the j pvispnerj. his Honor said: that'he thought"tbere was a question involved as to the admis*ibility of some of the evidence and as to his direction to the jury, and,he thought,the better course would De to postpone sentence until he had had an opportunity, of considering the matter further. Prisoner .would npt.be prejudiced by that, for he had not beenable to -,find, hail before, and it was therefore1 improbable that'he could now find the larger ; .bail that 'would be demanded after con-' viction, and any sentence he hereafter received would be as from, the first day of the seaion. The learned judge added that his own opinion at present was that there was.very little ground for the question raised, but he thought it right that it Khould .receive consideration; ■'.*' i..--,'.■:. Mr; Chapman then asked for directions as to restitution.. Section 421 of the Code, seemed to pi-bride'for" the protection of the honest-pawn-broker.'. . , ■.'. . .. .■.-..-.. His Honor, after cpnuideration, said: It seems to me clear that the object of this section-is to give a qualified propei ty in the pawnbroker when the court thinks proper to create this by order—that is to cay. of course;:the articje cannot be delivered up.until the nioney advanced on it is paid.r;lt seems clear that.the court should under certain conditions give this; right, and the question1 is whether this is a proper case in ;whick to-give effect to the provision. The only.possible circumr stances to be considered are the conduct of the parties. In this case the owner of the .property admits thathe-got drunk in a publichouse, aud that he was drunk1 and unconscious when -the prcperty was taken> Jt seems to me that he acted in such a way as to give evevy facility for the crinie. OnHhe other hand the watch and the chain appear to have been pawned under circumstancss. which; so.far as I can see, should not have excited suspicion 'in;.the pawnbroker, and he appears, so far as*was shown in the evidence, to haveatenca facilitated the police, in their duty of discovering. theY goods., ITnder these circumstances', the law iprovidins that he should not siifferfdr his conduct,. I think I ought to make a conditional' Order.-:, I-shall make an order for the delivery of the goods to O'Brien subject to his paying the amounts that were advanced.' Ithink that is a reasonable order, evea if it amounts to a penalty to a man who, by his drunken conduct, has put the country to expense. : The order was to tEe effect that the. watch and chain be delivered vto O'Brien on his paying £3 3s, the amount for which the goods were pawned. ' WOUNDING WITH INTENT. : . Charley Luck Chang was charged with having, on the : 15th . of' \January, at Tinkers Gully, wounded, one Jay Cooey with intent to maim, disfigure,'disable, or do grievous bodily harm. Mr Chapman conducted the case for the Crown, and Mr Hanldn' appeared for the accused, who pleaded. Not guilty.■",-" ; Mr Chapman, in opening the case for the Crown, said that'on the evening of the 15th of January a .Chinaman named. Cooey. went ■to the prosecutor's house to collect 6s which he said had been owing to him by the accused Chang for a number of years. : When asked' for the money Chang replied, "I have not got it, and now you ask •' me again." Some altercation followed, and Chang then said he was going to bed and that it ■was time Cooey: left. . Goaty had taken off his boots: because, so he. said,.he had been walking some distance and there was gravel in- hit boots. Cooey-begati to put his boots on and Chang then attacked.... him '■■ with a. tomahawk, : striking him twice on the back. • The prosecutor then ran out of the hutin the.direction of another .hut in the same gully occupied ! by John Martin; ■~ Cooey got to Martin's fence; and Chang, who had followed him, struck him. again and chased him into Martin's., .hut; where he again threatened him. Martin, gave; Cooey shelter and protection, and Chang accused Cooey of having broken into his .hut. and asked Martin1 to go back with him and see the place. Martin went, and found that the door had not been broken, though Chang had said it had been. Cooey stopped in Martin's hut that night, aud was found to be 'suffering great pain. In the morning Cooey went out and seemed to wander about the gully. Chang was then seen to again assault Cooey with the handle of a shovel or sluice fork. The,defence the learned counsel'said he understood was that Coney had broken into Chang's house, aud that Chang retaliate'): and used force to eject him. The jury would have to consider the whole of the circumstances arid see whether they were consistent with such- a'defence, pf course a man was entitled to defend his own house, but it was questionable whether there was any such defence here. The doctor who examined-the prosecutor foiind that both bones of the ieft forearm-had been broken,' that he was suffering from a pretty ■severe wound, on-thelankle, and that his back was injured The constable who was called in would give evidence that the blankets had not been stolen, though that was the story told-by-the accused, and that the accused admitted having committed the assault. ...„.-.... Evidence was given for the prosecution by Jay Goo«y (the prosecutor), John Martin, Dr Ward, John S. Dickie, arid Constable Toomey. Mr Hanlon did riot call evidence, but addressed the jury bu behalf of,the accused. The learned counsel argued-that the story told by the prosecutor was improbable, and that .the manner in. which in certain details it was contradicted by other witnesses proved that it was untrue. The more likely story was that told'by the accused, which was that the prosecutor'broke into his house and that he had used a certain amount of force to eject him,, but had not assaulted him in the manner described. Counsel commented at length upon,the evidence, and urged that the charge had not been established and that the accused was entitled to an acquittal. ■ His Honor.-in the course of summing'up, said ■ in reference to the plea of provocation, that he could not admit th*tif a little man found a big man in his house he was entitled to equalise their physical differenced by the use of a lethal weapon —to compel tha intruder to retreat at the point of the knife or axe. The proper coursi for a man in such circumstances was to take refuge in the law of his country. , . . - ■ The Jury, after .deliberating for half an hour returned a verdict of "Guilty of assault with intent to do grievous bodily harm." His Honor deferred passing sentence. - BREAKING AND ENTERING William Kennedy was placed in the box upon a charge of having, ou the 26th of November last. broken into and entered the warehouse of Siruuel Godfrey Neill and stolen therefrom eight boxes | of tobacco. A. second count charged the accused • with unlawfully receiving the tobacco -at the I time knowing it to be stolen. : I His Honor said he noticed that two persona i were charged on the indictment, and only one 1 ! appeared in the dock.*

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I Mr C. M. llouat said he appeared for both accused. The other man, who was on ba'l, was in the hospital suffering from hemorrhage of the lungs. MrFraser, who appeared for the Crown, asked that the accused should be tried separately, and that Kennedy's case should be taken first, that being a matter within his Honor's discretion. His Honor said he had no doubt as to his right to try the accused separately, but the question was whether on a joint indictment he could take separate pleas. ; Mr Fraser submitted that there was authority I for so doing in the case Regina v. Bam (7 Ccx, His Honor, having looked at the c«e, decided • to take the peas separately. ' ; The accused Kennedy was then charged, and • pleaded Not guilcy. MrFraser in opening the case for the Crown J described the premises from which the tobacco had been stolen, and the way an entry had evidently been effected—viz, by means of the skylight, which was broken, and with the aid of a rope that was found fastened to a cross-bar; The

; bonded store had beea broken opea, the Governnieut padlock on the Ijoud door having Lean wrenched apart. On the night of the 25th of i November the place had been left secured, and : the next morning it was found broken into, and that eight boxes of tobacco had been stolen ; , four boxe3 of which were of a bra»d knowa as ; "The Correct Thing at Last." Mr -Neill was the ■ sole agent, for this brand of tobacco, and the i dealerK to whom this kind of tobacco hsd been xolil would be called to prove that they had never sold this tobacco except in small quantities. 'Oa ; the 3rd of December, a few days after the tobacco ; had been stolen, a son of Mr Neill when passing a ' vacant section in Stafford street, <m his way to ; school, saw the accused Kennedy leaving the i section with a bag which contained .something of j weigkt, and apparently a box of oblong shape. ; The boy noticed the accused went down into ', Walker street Subsequently the detectives : searched the section and there • they found a broken box that had contained "The ; Correct Thins at Last" tobacco, and upon ; whicb box there was no.custom house stamp, ai j there must have been had duty been paid upon it. ; Other evidence would be given by a Chinaman I named Chow Fong, who would tell them that on i the 2nd of December the accused Kennedy asked j him to % buy some tobacco, and sold him some 201b ! itt 2s per lb, though the duty was 3s 6d., When, first approached hy the police Chow Fong did not give a truthful account of how. he came by the tobacco, but ifterwarda he told th-rn he had purchased •it ' from the accused. Another i/'hinamau, Joe Say, would tell them that prisoner had offered, to sell him tobacco for 2s per lb, and had said that he had five boxes for sale, that he would not sellless than 101b at a time, and would bring it at night. To another Chinaman tobacco was offered, at 2a per lb, but in this case the witness was not prepared to identify the accused. Witnesses would also be, called to prove that accused was seen in the vicinity of the store in question, that "previously he had been short of money, and that afterwards he was possessed of a good deal of money, and spent it freely. When arrested,the accused said to the detective, "You have pinched Chinamen," meaning by that that the Cainaman had been arreste*, though how he kDew that it was difficult to imagine, if he were innocent. The accused denied the charge, and it would be for the jury to decide whether the chain of circumstances that would be proveddid not con. clusively prove his guilt. ...-'» .;.■;■,-.■ The" following witnesses were, examined ■ and gave evidence for the prosecution :-f-William Godfrey Neill (ni«rchant), James Howard (chief storeman for- Mr;Neill), Frank Hilliker, Thomas Maw, and Charles Dickinson (tobacconists) Charles C. Croft (storekeeper), and Joseph D. Lawlor (clerk for Mr Mendelsohn). . . ■ A new branch of the caße being about to be entered upon, his Honor suggested the adjournlmeut, and . ...;.-"' The court adjourned at 4.30 p.m. until 10 o'clock nextmorning. ; ■..:■.-.■•■■'-.