SUPREME COURT.

Otago Daily Times, Issue 20708, 4 May 1929, Page 3

SUPREME COURT.

CRIMINAL SITTINGS.

The criminal sittings of the Supreme Court were continued yesterday before his Honor, Mr Justice Smith.

RECEIVING STOLEN WHEAT. George Spiers was charged with having, on or about various dates between April 2 and April 10, stolen 15 sacks of wheat, valued at {J.6, the property of R. Hudson and Co. Ho was also charged with having received from some person or persons, unknown 15 sacks of wheat, the property of B. Hudson and Co., knowing them to have been dishonestly obtained. Mr F. B. Adams conducted the case for the Crown, and the accused, who was not represented by counsel, pleaded not guilty. Mr Adams stated that the facts were very simple and very brief. Messrs Hudson and Co. received three consignments of wheat from farmers named Colbourue, Clouston and Clark Brothers respectively. The first consignment came from Colbourne, and reached Dunedin on April 2 in four trucks. One truck contained 86 sacks and the other three 87 each, making a total of 347 sacks. The trucks were run into a siding handy to a public road. The number of sacks lifted from those trucks by Hudson and Co.’s carter was only 335, leaving a shortage of 12 sacks. One truck had its full complement, but each of the others was four sacks short. Ten of the sacks were in front of the jury. The nest consignment, which came from Clouston, arrived on April S and 9. There were three trucks, containing 245 sacks, only 240 of which were taken from the trucks to Hudson and Co.’s. Four of the five missing sacks were in the court. The third consignment arrived from Clark Brothers. on April p. It comprised 104 sacks, only 99 of which reached Hudson and Co., leaving a shortage of five. The total number of sacks missing was 22, and the number in the court was 15. The time of disappearance appeared to be the time when the wheat was lying in the trucks. When Hudson and Co.’s carrier left the railway siding with a load the truck on which he was working was left unguarded. The wheat in the court was found in the possession of the accused. Early in the morning of April 20 three sacks were discovered in his motor lorry, which was standing in a yard in the Kaikorai Valley where the accused bed a shed. Later in the day the shed was broken open by the police, who found 12 more sacks of wheat. When asked for the key of the shed the accused said he had lost it. When the accused was first questioned about the three sacks of wheat he replied that it was his business. Later on he stated that he had received the whole of the wheat in payment of a debt. David Colbourne, a farmer at Morven, gave evidence that nearly all his wheat this season had been consigned to R. Hudson and Co,, to whom he sent 10 trucks. The wheat was the Hunter’s variety. It was sent in 48 sacks, which had blue stripes on them. Two sacks, which he had inspected after they came into the possession of the police, were similar to those which he had sent away, and the contents appeared to be Hunter's wheat. Witness identified eight of the sacks as having been forwarded by him. Albert Hutt, a farmer at Morven, stated that he had sewn all the previous witness’s wheat sacks for several seasons. Witness identified eight of the sacks in court as having been sewn by him. Another one appeared to have been se\yn by him. A tenth one had been opened, and he could pot identify it. Thomas Alexander Clouston, a farmer at Lauder, gave evidence relating to the sale of wheat to R. Hudson and Co. He sold all his Tuscan wheat to that firm, except gome which be retained for seed. He identified four of the sacks exhibited in court as being his wheat. Robert Sutherland, a mill hand, said that the sewing on four sacks which he had identified at the Police Station was very similar to his own. Charles Henry Drake, carrier, of Omakau, gave evidence regarding the carting of Clouston’s wheat. James Alexander Clark, a farmer, of Tuapeka Mouth, identified a sack of wheat exhibited iu court as his own, and it was also identified by Donald - Kerr M'Arthur, a deck hand on the boat running between Tuapeka Mouth and Balclutha. Robert’Watkins, a clerk in the New Zealand Railways, gave evidence regarding consignment notes. John Stewart, a motor driver, employed by R. Hudson and Co., said that it was part of his duty to cart wheat from the siding at Pejichet Bay. He and his assistant left the trucks unattended when they departed with a load for the factory, and were usually away for threequarters of an hour. He was unable to tell whether there was a shortage and alwas reported the number of sacks to Mr Charles Hudson. ■ Charles Deans Hudson, a partner in the firm of R. Hudson and Co., said that he found a shortage of four sacks in each of three trucks, of wheat, which his firm received from the previous witness Colbourue. In a consignment of wheat from the witness Clouston there were 240 sacks instead of 245. In a consignment from Clark five sacks were missing, making a total of 22 in all. He identified the wheat in court as belonging to the consignments. Constable Excell stated that on April 20 he went to the shed used by the accused. He went there at 20 minutes past’ midnight, and saw the accused and another man. The radiator on the accused's lorry was hot. The lorry was outside the shed, and there were no sacks of wheat in at that time. A few minutes later witness left, and took Cabral, the man with the accused, away with him. At 1.15 a.m. Sergeant Wade and witness returned to the shed. The lorry was then in the shed, and there was no wheat in it. About 2.15 a.m. Sergeant Wade and witness found three sacks. of wheat in the lorry-. These were taken possession of by the police. Sergeant Wade gave evidence similar to that given by the previous witness. He stated that he saw the accused about 6.40 that morning He had never left the lorry- from the time when he found the wheat in it. When questioned the accused admitted that he had put the wheat in the lorry in the early hours of the morning. When asked whore he got the wheat the accused said that was his business. When questioned again the accused said lie had got in from a man in payment of a debt. Witness asked for the name of the man, but did not get it. The accused accompanied witness to the police station, .to which the lorry and the wheat were also taken. Defective Sergeant Nuttal said that lie interviewed the accused on the morning of April 20. Accused declined to give any information regarding the man who gave ( him the wheat. Witness informed him that one of the bags had been identified by Mr Charles Hudson, of R. Hudson and Co., as their wheat which had been stolen The : accused still refused to give any information. On being questioned later he admitted that the shed adjoining his lorry shed was his. and he said that it contained eight or ten sacks of wheat. He stated, however, that the key had been lost, and adedd that he had received the wheat the shed contained at the same time as the other three sacks. Witness went to the shed and forced the lock. In the shed he found 12 sacks of wheat. The sacks were taken to the police station and were those which had been identified iu court. His Honor, in summing up, said that though the accused was not represented by counsel, the jury would no doubt consider the case in the ordinary way-. The wheat had been shown to have come from

three sets of people and was identifiable by the markings on the sacks and their contents. Nobody was in charge of the trucks at night, and the accused was known to bo taking wheat into his shed in the early hours of the morning. The three sacks in the lorry and those in the shed conformed with all the marks of identification, and the jury had to ask itself whether the only possible inference was that the wheat was Hudson’s. The accused said that he had received the wheat in payment of a debt, but any person under ordinary circumstances would immediately give the name of the debtor. The jury had to ask itself whether it was clear that the accused stole the wheat or whether ho know that it was stolen when he received it. The jury retired at 12.20 and returned after a retirement of a ■quarter of an hour with a verdict of guilty on the second conut—that of. receiving the wheat knowing it to have been dishonestly obtained. The .accused was remanded until this morning for sentence. BREAKING AND ENTERING. George Spiers and Anthony Cabral were charged with having, on or about April 10 at Dunedin, broken and entered the warehouse of White and Co. and with having stolen one case of petrol, the property of White and Co. They were also charged with having broken and entered the warehouse of White and Co. with intent to commit a crime therein. Doth the accused pleaded not guilty. Mr Adams conducted the case for the Crown, and Mr C. J. L, White appeared for Cabral, Mr Adams stated that each count rested on the fact that when the premises were examined it was found that a case of petrol had been moved from its rightful place to a position near the door. It appeared that the persons concerned had been disturbed and had had-to leave the case. The crime of theft was complete whenever an offender moved a thing with tllfi intent to steal it. If the jury were satisfied that the case was removed with the intention that it should be stolen, it should convict on the first count, and if it were satisfied that the accused broke and entered with intent to commit a crime, it should convict on the second count, where two persons were charged jointly with the commission of a crime it was not necessary that both should be present at every stage. What the law required was a common design between them, and if an net was done by one of them in pursuance of a common design it was in the eyes of the criminal law the act of each one, just as if both were actually present. At one stage the two accused were separated, one being in a motor lorry in the street, and the other inside White and Co.’s premises endeavouring to steal a case of petrol. White and Co.’s premises were situated on the harbour side of the railway line. At 11.40 p.m. on April 19, while Constable Crosbic was on his beat in Fryatt street he saw a motor lorry, without lights, in Bauchop street, near White and Co.'s premises. As he approached the lorry he saw a short man wearing a light-coloured overcoat coming out of White and Co.’s gate. As he passed the constable the man said “ Good night,” banged the gate, and went away. The constable saw a strongly-built man at the wheel of the motor lorry. When he asked what was wrong with the lights the man replied, “Nothing. I am waiting for a chap here.” The man was told to put the lights °on, and . he did so. The constable flashed his torch on the lorry, which bore the name and address: “ Spiers, Maori Hill." After going away the constable watched the lorry for a while, and then walked towards it with the object of ascertaining its number. As he approached the lorry the engine was staffed. and the lorry was driven off. Just then a man who was wearing a light overcoat ran out from a street corner and jumped on the lorry* An examination of the gate of White and 1 Co.’s premises showed that the bolt had apparently been broken. Further examination showed that a hasp on the door of the premises had been broken and that a case of motor spirit was near the door. A crowbar, which did not belong to White and Co., was leaning against the wall. At 11.55 p.m. Constable Cfswald saw the lolly coming from the south at a speed of about 25 miles an hour. The lorry turned into Manse street, and he lost sight of it. The Roslyn police were telephoned to, and Constable Excel! went to Spiers's shed, where he saw a lorry in the yard. ■ The two accused were in the cab of the lorry and Cabral was wearing a light grey overcoat. In the course of questioning Spiers stated that he did not know the name of his companion, and that he had just picked him up at the top of the hill. Cabral gave the name of Jones, and said u j V ed in . Alban y street. The two men had been in a restaurant together that night for supper. James King Hurrell, a storeman employed by White and Co., said that the Mm s petrol store was in Bauchop street. He described the premises, and said that he left them securely locked on April 19 On being summoned by the police next morning he found that a double pate had been forcibly opened and that the back door had been broken open. A crowbar, which did not belong to White and Co, was leaning against the parapet, and a c a se of petrol had been taken off the stack rii e , the open door. Witness knew Cabral, who had called at the store to obtain petrol for Messrs Hudson and Co. ■ Margaret Tabor, the wife of the proprietor of the Law Courts Restaurant, said that she was in the restaurant on the night of April 19. On that night the I two accused had come into the place at 10.45 and had had a meal, leaving together. ■ She had previously seen them in the restaurant together. Constable Crosbie said that he was on duty near the wharf on the night in question. At 11.40 he saw the lights of a motor lorry in Bauchop street in front of White and Co.’s premises. He walked up to the lorry, and when he had almost reached it a man walked out of the gate j of White and Co.’s premises. Witness j could not- recognise him. as he had his hat pulled down. He was short, and wore a light-coloured overcoat. He then walked towards Fryatt street. The man on the lorry was short and thick set. The lights of the lorry were off. and witness told the driver to put them on. Witness walked away, and as he did so he flashed his light on the side of the lorry,, and noticed the words “ Spiers. | Maori Hill.” Witness went down to Fryatt street and then began to walk back towards the lorry, which began to move away from him when be was 25 yards from it. As it reached Jutland street a man ran out and jumped on the running board. He seemed to be the same man as had come out of White and Co.’s gate. Witness returned to White and Co.’s store and saw that the rate and a back door had been broken open. He went to the Police Station and informed Sergeant Wade. Mr White: It was a dark, cloudy night, was it not? Witness: It was dark in Bauchop street. Mr White: Wasn’t it dark everywhere? Witness; It was night time. Mr White; Why do yon hedge like that? Didn’t another policeman in the lower court say it was a frosty, moonlight night? Witness: It was dark and cloudy. Constable Oswald said that when ho was standing near the Grand Picture Theatre on the night in question at 11,55 he saw Spiors’s lorry come from the south and turn into Mahse street. Constable Excell said that at 9.15 n.m. oji April 20 he received a message from the Central Station, and visited Spiers's yard in Naira street. Spiers and Cabral were in the lorry, the latter wearing a light grey overcoat. When asked how long he had been there. Spiers said. “ Some little time.” Witness put his (land on the radiator, and told Spiers that he coi’.K not have been there long, as the radiator was hot. Spoil's said that lie trad been there for half an hour. On being asked who hig friend was, ho said that he did not know, as he had picked him up at the top of the hill. Cabral gave his name as John Kent James Jones, and said that he lived at 91 Albany street. Witness, went back to the station, where he was joined by Sergeants Wade and Vaughan. They 'returned to the yard again, but could not see either of the men. Spiers was not at his home, and witness returned to the yard with Sergeant Wade, waiting there until nearly 8 o’clock in the morning. When be first saw the two accused at 0.15 a.m.

they showed signs of having had liquor. W hen he examined the lorry with Sergeant Wade he found four full bottles Ot beer under the seat, but there were no empty bottles about. Sergeant Wade said that at about 6.40 09 the morning of April 20 Constable, Williamson brought Spiers to the yard. told Spiers that the premises of White and, Co. had been broken open, and that his lorry had been seen in Banchop street. He denied that his lorry had been there. He said that he had taken a parcel to the Railway Station, and on his.return home had picked up a drunken man at the top of Roslyn. Cabral was wearing a light-coloured ‘overcoat. Sergeant Vaughan said that Cabral at first said that his name was Jones, but later said that his name was Cabral, -and asked to be allowed to make a statement. Mr White objected to the statement being produced. His Honor: On what grounds? Mr White said that Cabral was practically under arrest, and -had not been warned. He was at the Police Station. His Honor: Plenty of people are at the police station and are not arrested. Sergeant Vaughan said that Cabral was arrested as a result of his statement Cabral said that he went to the station with Spiers, and had ■ a meal with him at the Law Courts Restaurant. They then went up to Kaikorai and had a drink. Detective Sergeant NnCtal] produced q statement made by Spiers, in which he said that Cabral wag lying when he said that he went to the railway with him. No evidence was called for the defence, and Spiers stated that he did not wish to address the jury. Mr White, in his address to the jury on behalf of Cabral, said that the whole case depended on circumstantial evidence, and he wished to utter a warning against the risk of depending upon evidence that was wholly circumstantial. Practically the whole of the evidence had been given by police officers. One constable said it was a dark, cloudy night, while another constable, who was a quarter of a mile away, said it was a clear, frosty night. It must be remembered that White and Co.’s premises were closed at 1.15 p.m. on the day in question, and that the crime had not been discovered until just before midnight. If two people were setting out on a. criminal expedition, it was not likely that they would have gone to a public restaurant for supper, A few minutes after the crime was supposed,to have been committed. Spiers's lorry was seen coming from the direction of South Dunedin. The accused were in a drunken condition when they were spoken to by the police at Roslyn, and the speaker suggested that they had been to a drunken party. Even assuming that Spiers was the man in the lorry, that was a long wqy from connecting Cabral with the case. His Honor, in summing up, said that the case was not a complicated one. The jury had to draw its own conclusions whether the warehouse was broken open and whether the accused did it. Against Spiers’s statement was the evidence of the police, who said that they saw his lorry in Bauchop street. As to counsel’s suggestion that the whole of the evidence oE the two constables should be disbelieved because they difiered in the description of the night, that could be left to the commonsense of the jury, Cabral agreed that both were at the restaurant together, whereas Spiers said that they were alone. Counsel suggested that it would have been a very daring thief who would have said “ Good night ” to a constable and then walk along the road in an ordinary manner; but,the jury could ask themselves whether, if they came out of a warehouse at that time, of the night and ran away, they would not be seized right away. The jury retired at 4.20 and returned at 5.50 with a verdict of guilty in the case of each of the accused on the second count —that of breaking and entering with intent to commit a crime. The accused were remanded until this morning for sentence. PRISONERS SENTENCED.

(F£R United Press Association ) WELLINGTON, May 3. ‘ The following prisoners were sentenced in the Supreme Court to-day by Mr Justice MacGregor;— Frank Sekington, for breaking and entering and theft and attempted breaking and entering with intent to commit a crime at Woodville, two years’ detention in the Borstal. William Patrick Murphy, for escaping from custody at Wanganui and five offences of breaking and encoring and theft, three years’ reformative detention, to commence at the expiration of a sentence of three months’ hard labour at present being served for unlawful conversion of motor cars. John James Morgan, on each of four charges of forgery and uttering and one of forgery at Wellington, thre years’ hard labour. On a charge of making a false declaration in regard to a postal packet at Wanganui> William Alexander White was ordered to be relaesed on payment of costs (£lO 9s 6d).. Counsel stated that the chief witness for the prosecution in the lower court was willing to have the prisoner back to board with her, and his employer was willing also to take him back. He would have a chance to rehabilitate himself.