SUPREME COURT.

Otago Daily Times, Issue 14381, 26 November 1908, Page 11

SUPREME COURT.

CRIMINAL SITTINGS. Wednesday, November 26. (Before his Honour Mr Justice Williams.) His Honor took his eoat-on the Bench at 10.30 a.m; Vacbakcy. Willinip Luby, who had been found guilty on tho previous day of being a roguo and a vagabond, was called on for sentence. ' The accused was undefended. In answer to tho customary question, ho said lie would call attention to this: that on tho testimony of the witnesses whom he had called he liad, during the four months since his ia6t scntonce, tried to conduct himself nvoperly. He hoped that his Hotior would take that fact into consideration. Ho ■vyould also ask if his Honor could see his •way to convict and order him to conic up • for sentence when called upon, on condition that he found some other calling than that of following up races. Tho ovidenco showed that ho got his monev honestly, and if given a chanoo it was his intention to turn up tho racecourse business and got to somo more respectable employment. The Crown Prosecutor_ (Mr J. F. M. Frasor): Tho one complaint about him is in regard fo a matter that lie can remedy himself. Tho trouble has lwcn that ho will not work. , His Honor said that there was a- law point in the case that he intended to, and indeed must, reserve for the Court of Ap,penl. It might bo that from one possible view of the law tho conviction was wrong. . Ho thought that that view of the law bad been taken in other parts of tho Dominion. That being the case, he did not feel inclined to send the accused to gaol at once j —whether he had to go there or not after-•wards--because if the conviction should prove to bo wrong he would not have to go to gaol at all. The Crown Prosecutor said he thought it a' good thing that tho jwint should bo re'served, for tho present practios was distinctly unjust. ■ His Honor said ho noticed that Luby's previous, convictions were all for or through drunkenness, except one for forfiorv four years ago. . The Crown Prosecutor: It was forging a racecourse telegram. If he is released on h'is own recognisances and goes to work that will impress your Honor, no doubt. Accused, in answer to. a question, said that he was a sailor, and had quartermaster's discharges from White Star and other deep-water ships. They were all Rood discharges. Ho never took to drink till he came to Now Zealand. His Honor: You will bo released on your own rocognisances in the sum of £25 to / come up for sentence at the sitting of this court which will take place after the next sitting of tho Court of Appeal in May next. You will have to appear. But if you keep straight in tho meantime, and go to work, probably no sentence will bv passed upon you. Your future lies in your own hands. TIIE IEGAI QUESTION. ''Under subsection A of section 49 of "The Police Offences Act, 1908," when it is proposed to proceed against anyone for being an idle and disorderly person, having no visiblo lawful means of support, tlfo polioe, apply to a justice of tho peace for a I summons to the person to appear before the justice "for the purpose of giving to mo as such justice a, good account, to my tatisfact.ion, of your means of support." When before the justice ho is called on to explain his means. If the justice be satisfied with the explanation made, there is an end of the matter. If not satisfied, an information is laid against the person for being an idle and disorderly person in •hat ho is a person having no visible lawful means of support, and has failed, after having been duly summoned before' the justico for such purpose, to give a good account of his means of support to the satisfaction of such justice. Tbe accused is then brought before the court and tho case is heard in the ordinary way. This practice waa adopted, we understand, on tho authority of Wilson v, Travers, decided by a full bench of judges in the Full Court of Victoria, on a section of the Victorian Polio? Offences Act, which is similarMo the one in our own act quoted above. This case is followed it" the court at Auckland, as well as the court in Dunedin; but in other parts of the Dominion the .accused person is at once brought before the magistrate and charged without, any preliminary investigation. Tho point in Luby's cu.se was taker by Mr Justice Williams, and tho Crown Prosecutor strongly commented on the inadvisability and the unfairness of the procedure that bis Honor challenged, TLI.-TItEAT I ING A GIRL. George 'Edward Smith and Charlotte Elizabeth. Smith, husband and wife, were indicted with, between November 10, 1907, and February 9, 1908, at Green island. Having then the custody of a girl under the age of 16 years, wilfully ill-treated her in a'manner likely to cause her unnecessary suffering. There were other counts of having indecently assaulted tho girl. JSoth accused pleaded "Not guilty." The male accused resumed his address. He denied that there had heen any improper treatment of any kind, and asserted that the chastisements were kind and firm attempts on the part of himself and bis wife to do their duty to God and to the girl herself. Thero was no motive for brutality. • Why should thoy be cruel to the girl? The / fact was that she had been allowed to do as sho liked before coming to their home, and they took her in hand to do her good. The chastisements were not such as to cause injury. They wore simply such'as any misbehaving child might receive as correction. The blame was really with tho parents for the way they had brought up tho child. There was no evidence of improper treatment, excepting that of tho girl herself, and it was shown that her word was not to be relied npom He and his wife had fairly tried to do their duty as guardians, instead of shirking that responsibility. and leaving the Stato to punish tho girl when ehc became a woman. His Honor, ir summing up, said that -the scalding referred to was really outside the indictment, since it took place on- the 9th February, amd tho girl's sixteenh birthday was on the 17th. The judge ako remarked that there was internal evidence in the diary that it was at any rate in part dictated by the male acoiised. Tho ' •wording' of some of tho entries reminded one of the letters that the boys in Squcere'a Echool used to write home to their parents. His Honor further 6aid that if it could l)o believed that the acts complained of wero dono honestly for the purposo of correction, one might, take, a lenient view of the ca=e, but it :was hard lo believe, if the girl's story was true, that the malo accused's motives were pure. In the court below tho girl said, when under cross-examination by counsel, that the correction was for misconduct. Tho words were probably put into her mouth by defending counsel—that was usual—and.maybe it would not be wise to attach too much weight to what was said in those circumstances; but it wae fair that tho jury should know that the answera did • appear on the depositions. The jury . would have -before them the amazing diary, which was important; they would also have a number of letters written by the accused, including one which seemed to be conceived in a spirit of abominable malice. It was a letter in Mrs Smith's handwriting, but Bigned by the malo accused, addressed to tho man to whom the girl was engaged, and sent after the girl kit tbe Smiths' place, advising him to chastise her aa they had done. The jury retired at noon, and returned at. 10 minutes to 3 o'olock with a verdict of "Guilty" on both counts of the indictment. Sentence was deferred. SERIOUS CHARGES. James Wood was charged with committing i, criminal assault on a young woman at Duntroon. Tho accused, who was defended by Mr Hanlon, pleaded "Not guilty." The jury brought in a verdict of " Not guilty," and the accused was discharged. Benjamin Barker, a young man, was charged with indecently asaulting a girl aino y«vrs of age at South Dunedin. Mr Uurnard appeared for tho accused, viio pleaded "Not guilty." Tiie case was partly heard when the court iv*e. This morning Mr Buruard will address the jury, after which his Honor will sum up tho evidence.