SUPREME COURT.

Otago Daily Times, Issue 19551, 6 August 1925, Page 7

SUPREME COURT.

CRIMINAL SESSIONS. Wednesday. August 5. ((Before his Honor Mr Justice Sim.) The quarterly criminal sessions of the Supreme Court were continued before his Honor Mr Justice Sim at 10 a.m. yesterday. BREACHES OF BANKRUPTCY ACT. Walter Henry Clement, for whom Mr W. E. 1/. Moore appeared, was called on to answer four charges of breaches of the Bankruptcy Act. The specific charges were that he, being an undischarged bankrupt, obtained credit about July 1 or 2, 1024, to the extent of £32 from Norman Wood, contractor: on November 17, 1924, to the extent of £24 from John Darling, insurance agent; between January 20 and 26, 1025, to the extent of £2O from Sanley Reginald Burns, tailor, and on various dates from March 6 to April 24 to the extent of £27 12s 71 from Frederick Josejih O’Neill, electrician, without informing them that he was an undischarged bankrupt. The Accused pleaded not guilty. The Crown Prosecutor, Mr F. B. Adams, said that accused was adjudged bankrupt at Invercargill on December 15, 1923, and he had not yet been discharged. Under the Bankruptcy Act, section 138, paragraph b, it was an offence for every person adjudged bankrupt if before he obtained an absolute order of discharge or before a suspended or conditional order of discharge took effect under that Act, to obtain credit to the extent of £2O or upwards from any person without Informing such person that he was an undischarged bankrupt. The question, therefore, on each of the four charges was whether or not the accused obtained credit to the extent of £2O or upwards from the persons named in the court without informing them that he was an undischarged bankrupt. The • position of an undischarged bankrupt was a somewhat peculiar one. When a man was adjudged bankrupt the whole of his property passed to the Official Assignee and any property which he acquired afterwards while he remained an undischarged bankrupt also—with a few exceptions—passed to the Official Assignee. A bankrupt might in the ordinary way acquire liabilities, but he was practically without the means of discharging them. Therefore, it was a dangerous thing for an undischarged bankrupt to incur debts. The law recognised that it would be too much to expect that a bankrupt should acquire no debts, and it allowed him to incur them up to £2O. Further, it was provided that if the creditor knew that he was deal' ing with an undischarged bankrupt, then there was no real injury, and no criminal offence was committed. On the other hand, it was a serious injury for an undischarged bankrupt to incur a debt without warning the creditor. In this case four separate creditors would be put in the box, each one of whom would say that h“ had received no warning as to the accused’s position. The exidence was cumulative. On July 1 and 2, 1924, the accused borrowed from Norman Wood, a fellow boarder, two sums of £2O and £l2, which he said he wanted for the purchase of a motor car for his business. Mr Wood, being unable to get a repayment, sued, and obtained judgment on accused’s confession. That case would not present any difficulty. In the second case, John Darling had a motor car he wished to dispose of, and bq sold it to the accused for £2O Darling was led to believe the money would he paid in a fortnight’s time, but he was unable to get payment. In January of this year accused received two sums of money from S. R. Burns, tailor. A sum of £5 and another of £ls were paid by Burns to Clement for a motor car, but the accused had never delivered the car. la March accused paid a sum of £l. but this did not prevent the transaction being a criminal offence. In March last the accused approached Mr O'Neill. W hile the first three offences were committed the accused was carrying on the business of motor dealer m Stuart street, but he had taken up business as an electrical contractor. Accused told Mr O’Neill he had contracts in hand to the value of £IOOO, and askedf for a cut on the largo quantities of goods he would require. He said he would pay cash as ho went. He rang up and got goods valued at £27 12s 7d sent round to him, saying he would tell and pay in the afternoon, but he had never done so. He understood the value of the goods would be disputed, but even if there was serious overcharge in the account there would still be a criminal offence. Receipts would be put in signed by the accused: “The Commercial Motor Company, per W. H. Clement, manager.” This suggested that accused was merely agent of a concern in which perhaps he had no beneficial interest. The absence of the word “Ltd.” indicated a partnership., Mr Holden would give evidence that he let the premises to accused, and almost immediately there appeared the name “Commercial Motor Company.” The Crown asked them to believe that the accused was the Commercial Motor Company Even ■ if they were satisfied that there were others in the concern, that would still bo quite sufficient for the Crown’s case. Accused could only exonerate himself by proving that he did not incur the debt. Accused had mentioned a. Mrs Penn as coming into the business on a certain date, but if necessary she would give evidence that she never had any intention of doing so. It was not necessary for the Crown to establish any intention to defraud. Accused might have acted with the best intentions of the world, but the facts counsel had outlined were a breach of the Bankruptcy Act. Mr Moore admitted that accused was a bankrupt and had not had his discharge. Norman Wood, builder, of Dunedin, said he had been staying at the Club House, Moray place. Accused stayed there for about six months last year and sat at the same table with witness. Accused borrowed £2O from him on July 1 and £l2 on July 2 for the purpose < of getting a motor car to increase his business. Witness did not know that accused was an undischarged bankrupt Accused offered him a car as security, but witness did not look at it. He subsequently- sued accused and got judgment in the Magistrate’s Court. He had received word on Saturday that the money had been paid into court. To Mr Moore: Accused.never mentioned his family affairs, hut be said ,he had bad a serious illness. Accused was in the boarding house for a while before witness knew him, Mr Moore: Have you been hard up yourself ? His Honor: How can that be relevant ? • Mr Moore: It is a question of a conversation, your Honor. I will put it another way. Continuing, Witness said he had asked accused for payment about two months after the loan. Re-examined: Accused gave him to understand that he was making anything up to £ls a week. James MTndoe, clerk of Magistrate’s Court at Dunedin, produced records showing that Wood obtained judgment from accused by a confession for £32. The whole debt had been paid into court on July 21. ■ John Darling, insurance agent, said be had first met accused in November last when ho went to see him about a car advertised. Clement told him it had been sold that morning. Later accused came to inspect a car that witness agreed to let him have for £2O. Accused agreed to accept it and pay in a fortnight after ho got payment for another car. Witness had been paid about a week ago. Ho arranged to get his car back and take so much money. The car had no tyres and had been practically dismantled. Ho had ho idea that accused.was an undischarged bankrupt 'till February or March last. Ho hired a car from accused and bought, some oil from him after he sold the car. To Mr Moore ; He got the car back because Mr Holden 1 old him he bad taken possession. He understood he had the right to take it “away. He received £ls from accused in settlement. The oil and hire amounted to £5. No allowance was made for the car, which was dismantled and practically in pieces. Stanley Reginald Burns, tailor, said in January last ho went to accused’s garage to ask for a second-hand car. Accused showed him a car which he agreed to deliver to him in a week’s time. The price was £SO, and witness paid £2O in two sums. He obtained a written guarantee from accused, but, he never received any car from him. Accused said his partner did not wish to sell it, but he did not indicate who the partner was. He gave critness £1 on account in February. Accused never told him he was an undischarged bankrupt. To Mr Moore : At accused’s garage Mr Holden might have told him he would not deliver the car. Witness took legal proceedings, but failed to recover the car. Accused frequently said there was a prospect of delivering the car. He had not received the car, hut last week lie bad been paid the £l9 due to him. , Frederick Joseph O'Neill, currying on business under the name of the British Electric and Engineering Company, sairt he had known accused by sight for about two years. Last March accused came and said he had about £IOO3 worth of electrical contracting to do, and his diffigiilty waa to get switchboards. He would

require witness to make switchboards. He said he woidd put as much material as he possibly could in the way of witness, and that everything would bo on a cash basis. Witness told accused it would need to be, as he had a certain amount of suspicion. Clement rang up to say his work was being held up for want of material, and eventually witness agreed to release it on the promise . that accused would pay that day. Witness did not know till six weeks later that accused was an undischarged bankrupt. The retail prices wore higher than those shown in his account. When he interviewed accused later, the latter said he would get nothing if he made a fuss. His lawyer had the matter m hand, and witness would be paid that day or the following day. He had not been paid. Mr Moore: He can get the money. The amount is absolutely in dispute. To Mr Moore; He had not worked with Clement in the National Electric Company. He had not heard of accused’s banKruptcj. in Invercargill. There was no overcharge in his account. Mr Moore went through the items in the account comparing the copy put into court with an original he held. In almost every case the figures Mr Moore had were much below those in the copy held by the witness. To his Honor: Ho recognised the account quoted by Mr Moore as a document coming from his office. Those were cash prices, not booking prices. Mr Moore continued to cross-examine on the iprices. Witness asserted that certain items had been given right at indent prices. , , , His Honor said that wtness had rendered an account and then a quite different one “I do not see,” he said,, “how in the face of that evidence the jury could be asked to convict.’ The account was for £l., and accused had never been in debt £2O to witness. ~ Mr Adams said that the account ms Honor referred to did not include all the items. , , His Honor: When a man is charged one thing one day and another another you cannot ask the jury to convict. Mr Adams said he was not disposed to press it. ■ . , Ilis Honor: X think as far as this charge is concerned the jury ought to be told that that there is no case to answer. The jury need not worry. The witness had better stand down.

The witness did so. Louis Holden, retired piano merchant, produced the* agreement under which Mr Stenhouee and he had leased a property in Stuart street to accused. Ho had had no dealings with anyone else in connection with the tenancy. Accused told him no was going to trade as the Commercial Motor Company. Witness hired oars to him at various times. Accused told him that a lady was coming into partnership with him not later than January 14. Accused sublet part of the property. To Mr Moore: The five cars accused first purchased for him wore a Singer at £75 a Ford at £7O, a Dodge at £BS, a 1914 Ford at £65, and a new model Ford at £llO. For another car witness paid £oo, and got.back £55. Until the time, a bailment was fixed up witness charged accused interest or “profit” to the extent of £23. That, was at 20 per cent. Mr Moore examined on another agreement under which accused wa- to pay £475 for the five cars The £2O deposit made by Burns was not paid over to witness. He did not complain that Clement had sold the car to Burns too cheap. He gave Mr Daring authority to to take the car he said was his. His Honor objected that Mr Moore was getting miles away from the charge against Andrew Fenn, of Invercargill, said accused had been an electrical contractor in Invercargill and had leased a shed from her. Shortly after the bankruptcy accused went to Dunedin. About a year ago, he was in Invercargill and offered to get her a car cheap. She offered to give him a small deed to secure one. He was to use the car in his business and give her so much a month interest. She afterwards posted the deed to him, and had recently had to. pay a off that section. He did not give her any receipt and she had received no money in connection with the car he was to purchase for her. She had never mentioned croine into business with him. g To 8 Mr Moore: She knew Mr Clement had been bankrupt -and that he had had a serious opera.tion._ Witness at first denied that she had signed a document produced authorising Clement to purchase “two more cars. She then said the ei 0 nature was hers, but on learning the contents of tho documents declared that tha ■ was not the document she signed, and it was not her signature. At Mr Moore’s request witness wrote her signature, and he handed it up to his witness denied that she had had any other business dealings with acclosed the case for th« Crown, and Mr Moore intimated that he did not desire to call evidence. In his address to the jury Mr Moore said that they were really separate cases, and tho facts in regard to each were different. As regards the business relations between Mr Wood and the accused, they must realise that Mr Wood had a short memory, and the accused had taken it for granted that Mr Wood had known of bis financial position. Counsel traversed the evidence of Darling", ana said the extraordinary part of if was that Darling took back the car, although he had no authority from the accused, and, having sold it it did not belong to him. He submitted that in this case tho accused was entitled to an acquittal. In Burns’s case Holden had received 27 j per .cent, on his outlay. It waa a fact that Clement did get £2O. Ite had spent, port of it on the car, an<J ho had every right to expect when he paid the balance to Holden that tho car would he handed over. There were three or four people who had an interest in the cars, but the business belonged to Clement. I ho evidence in the Electrical Company s case was purely farcical. , His Honor quoted the section of the Act under which the charge was laid against the accused. The jury had to be satisfied that in each of the cases he had obtained credit to the extent of £2O without divulging the fact that he was an undischarged bankrupt. So far as the fourth count —that relating to Mr F. J. O’Neill — was concerned, after tho extraordinary admissions made by O’Neill with regard to the invoices the Crown Prosecutor had quite properly admitted that he could not ask them to convict on that count. Therefore, it would be quite enough to bring in a verdict of not guilty on that count. There had been most extraordinary discrepancies divulged during the cross-exami-nation in this case. On the first charge— Woods’s case —it was entirely a question of whether they believed the evidence r/ Woods or not. ’ In Darling’s case the accused had also made a settlement as well as in Woods’s case. The fact that a settlement had been made did not purge the accused in any way from the offence. If they were satisfied that Darling was telling the truth they should have no difficulty in coming to~a verdict. In Burns’s case a settlement had alsq been made by the accused. Here again it was a matter whether they believed Burns or not. The jury retired at 2..-0 p.m. and returned at a-quarter to 4 with a verdict of guilty on the.first charge and of not guilty on the second, third, and fourth charges. The jury also submitted a strong i ecommendation to mercy on account of tho illno-ss of the accused. The accused wa.s remanded for sentence. SERIOUS CHARGES. David Nevin M'Kechie was charged with, on or about April 5, 1925, at Abbotsford, indecently assaulting a female; and David Noviu M'Kechie and Ruby Hinton M'Kechie were charged that, on three occasions in tho month of April, 1925, and on one occasion, in May, 1925, they did conspire, one with the other, by false representations, to induce the said David Nevin M'Kechie to commit adultery with the girl. Mr C. J. L. White, who appeared for tho accused, said he desired to raise a point under section 399 of the Crimes Act before tho accused pleaded. He wished to move that the conspiracy counts should be quashed on the ground that husband and wife could not be charged with the offence of conspiracy. His Honor: The indictment does not show cii tho face of it that they are husband ami wife. This, however, was not the proper time to raise tho question. Jt could bo argued at a later stage. Both accused pleaded not guilty. The court was cleared during the hearing of the case. Tho Crown Prosecutor said the girl was 19 years of age or thereabouts, and consent on her part to any act of indecent assault or otherwise would be a defence to any such charge. They had therefore to consider whether or not the girl consented to tho act in question. The question whether husband and wife could enter into a conspiracy need not come unde.r their consideration. That was a matter for his Honor to pass judgment on. This matter could he dealt with after the verdict had been given. Counsel gave details of what had happened, and said that, the wife had denied that she had influenced tho girl or her husband to commit adultery. She had said that she gave them full liberty to please themselves. The male accused denied that the intimacy took place with the knowledge of hie wife. Counsel de-

tailed further occasions on which intimacy had taken place between the male accused and the girl. The details, he said, were disgusting in the extreme, and it was difficult to conceive, of such things occurring. As regarded the charges of conspiracy, the Crown could place facts before them that were facts of common design. The fraudulent representations .appeared to have come entirely from the side of the wife, with the exception of the incident which might have been a pretence at intimacy between husband and wife. If the wife were making the representations the male accused was profiting by them. He know what she was leading up to, and the end of it was intimacy between the man and the girl. The Girl said she had lived next door to the accused for about, three years, and during that time she frequently visited them. She had often taken the accnseds two children out, and had played cards at their house in the evenings. She had gone to their house on Sunday. April 5, and had had tea with them. After tea witness and the two accused sat on a mat in front of the fire. Mrs M'Kechie persauded her to have intimacy with her husband. >tness stated that she had gone hack to the house on other occasions, and gave details of further intimacy with M'Kechie, and of the urging* of Mrs M'Kechie to go her husband. She had been living all the time with her mother. She had subsequently told her mother what had been going‘on. She had had an operation for appendicitis tour years ago. She bad shown the scars of the operation to both the accused. Mrs M'Kechie had asked her to let her husband see them. He did not im-fT" fero with her on that occasion. Mrs M'Kechie had shown her an indecent document on one occasion and she had read it. Cross-examined, the girl said she was one of a large family. She was sure that intimacy had taken place on four occasions. She "had been friendly with the M Kechie s for about three years. • Her visits to -he house had increased since Christmas time. She went over to the house prior to Christmas pretty nearly every day. bllt much more frequently since. Sometimes she went there in the afternoons and evenings. She had thought M'Kechie s treatment of her was most improper, but Mrs M'Keohie said it would do her no harm She did not know it was rude. s>he did not remember whether she swore it was rude or not When she gave evidence m the lower court. She did not know how long the “smooging” had been going on between her and M'Kechie He used -o put her on his knee, and she used to sit there. Mrs M'Kechie used to ask her to go over to her house after the first intimacy, and they continued quite friendly. Mrs M'Kechie said she did not mind witness climbing pn her husband s knee. Dr Evans said the girl was undersized, but fully developed. She had curvature of the spine, and she hod to wear a spinal support. She appeared to 'be soft and ea The Mother said the girl could do only light work. She knew the accused they had lived next door to her for about three years. She knew nothing of what had been going on till her girl had told her. She had heard Mrs M'Kechie call the girl over to the house. Her husband had communicated with the police. When her daughter told her what had happened she had told Mrs M'Kechie that she would know all about it when her husband came home. Mrs M'Kechie said she could not help it, and held her bead down. Cross-examined, witness said her girl had been going to the M'Kechie’s more since Christmas time. , Detective Boar said he had inteiwtewecl the female accused. He told her of the allegation made against her, and she said she would say nothing until she had seen her husband. He saw her again, and she said she knew her husband had had intimacy with the girl in her house. She said she was not in the room when it happened. Witness ’ gave further details of statements made by the female accused who denied that she had persuaded the girl to consent to the intimacy, but said she hail given the couple full liberty to please themselves. He had then come to town from Abbotsford, and went to the railway deviation works with the chief detective, and there interviewed the male accused, who had said it was quite true that he had intimacy with the girl on more than one occasion. He denied Jt was done with his wife’s knowledge or consent or that they had persuaded her He said the girl had been pestering him for intimacy for a long; time, and that a man’s passion could only go so far. He said the girl had been sitting on his knee and kissing him. Eater in the day witness returned to Abbotsford and jointly charged the wife with the husband. Cross-exam i ned, witness said the wife took up the stand at first that she was the injured party,, and not the; girl, but later she had stated she had given them liberty to * please themselves. This closed the case for the Crown. Mr White then raised the question of quashing* the conspiracy charge on the ground that a husband and wife could not be charged with conspiracy. His Honor stated that there was no evidence before the court that they were husband and wife. He thought Mr White might reserve the question for till the case went to the jury, and if it convicted, then the question could go to the Court of Appeal. That would save argument on the matter. Mr White said, if necessary, ho would produce evidence fliat the parties were married. The court then adjourned till 10 o’clock this morning.