CRIMINAL SESSION.

Otago Witness, Issue 666, 3 September 1864, Page 9

CRIMINAL SESSION.

Thursday, Ist Sept^mbbr. (Before Mr Justice Chapman.)

The Grand Jury consisted of Mes«rs Arthur W. Morris, James Barr, F. E. Meiville, Jamea •Smith, Thomas Taylor, Henry Farley, W. W. Tickle, Frank Orbell. George O'Driscoll, John T. Wriehr, H. F. Hardy, Walter Bell, James Finch, Francis John Ald-rson, Andrew Mercer, James Marshall, senr., William Royse. T.'ie Grand Jury having been sworn, £lis Honor said— Mr Foreman aud Gentlemen of the Grand Jury, I am happy to be able to congratulate you upon the lightness of the calendar for the present sitting: of tha Court. I believe it is lighter than it Las be?n in this colony for some years pa^fc. There are only twenty persons for trial altogether, of -whom seventeen or eighteen a c prisoners, and the re mninder are out on bail. As seme of the prisoners are charged with more than one offence the number ot indictm.-nts will be twenty two. I may also congratulate you and the country you represent that there are no crimes of a very grievous nature— there is no capital oflene-.', and no grievous offence approachiug to a capital offence. Sixteen of the offences are offences against property, and the six offences against the person are not of a very heinous character. In this colony, ard indeed in all these colonies, the temptation to crime as wall as the excuses for crime, are much less than in Knglandv There are causes of crime pervading society in Kngiand which I hope do not exist here. In the first place, I hope there are no persons in this colony who are carefully and deliberately educated, ?o to speak, to jrirae, as in England. There is no doubt whatever, among the dangerous classes of society at home, there are criminals who^e trade is crime. They are educated in it from their earliest iDfancy systematically trained to be thieves. They are in fict as systematically and carefully trained as thieves as we are educated in Latin or mathem itics, or in tha principles of religion. We have had frequent illuatnSions of this fact in cases which come before the Courts there, and I may mention one which cime within my own experience, because it specially illustrates whit I have just stated to you. la an indictment for burglary a quarter of a century ago at York, the principal witness was an approver. He was a man who had taken part in the crime himself—not a prominent part of course— and saved himself by turn ing Queen's evidence, as it is called. The remarkable feature in his evidence is this, he gave in his cross-examination, a description of his own training, which do doubt answers to that of a large class at horns. The prisoner was defended j Sergeant Wilkins, who was perhaps, as acute and skilful a cross questioner as ever graced the bar. " Well, Mr Dunmore," asked the Counsel, *' What are you ?" He answered in his boad Yorkshire dialect, "I am a thief." Hia answer took the Counsel aba^k, and naturally wishing to shake the credibility of the evidence of the witness as well as desirous of furtberexplanation, he asked, " Were .\ou brought up to no trade whatever?" '-No, Sir, I was trained a thief." "What was your father?" "He was a thief too." The man went on describing the manner in which he had - been trained, and it was quite clear he had been systematically trained to crime, and knew nothing else except reading and writing, both which he could do well. The man appeared to be deficient in moral sense— in moral apprehension, flis intellect was perverted in that respect, but although that was the c& c c he gave evidence of considerable intellectual capacity, and some training of the intellect in the answers which he gave to the questions put U him. A hand bill had been put forward by the poiice authorities offering a reward for the apprehension of the offenders, and lie comprehended that if one of the parties who committed the crime, not being the principal, he would be pardoned. He was questioned as to whether lie had seen this hand bill, He admitted he had seen it stuck about ihe walls of the towns in Yorkshire, on the police stations and elsewhere. He then was asked whether he had read it or not. He denied

having read it. " Could he read V "Yes, very well," he said. He was then asked to explain, why he had not read it The answer evinced/%e was quite aware of tha effect an affirmative answer would have had on the minds of the£j ry^ ifc was very acute< "Because I knew, Mr Wilkins, you would ask me that question.'*' So that his intellect had been trained to see and to understand the effect of the question. He was also singularly candid in answering the questions put to him, stopping short only when his answers would have affected his testimony. Now I mention this to shew thatthere is a class of persons systematically trainei to crime in England. I hope and believe there is nothing of the sort here There ia another circumstance in England which certainly does not prevail here to any extent, and that is there is a large number of the working classes very frequently in a &tat 3of frightful distress, which is no doubt a great temptation to crime, and although the lawmakes distre39 no excuse for crime, in a moral view we cannot help making considerable allowance when offenders, from that cause, are broueht before Courts of Justice.

There is, however, one cause of crime which does exist to a considerable extent in these colonies, and that is habits of intoxication. Many of the deeds of violence brought before Courts of Justice are committed wh°.n persons are under the influence of drink. But that isnot all, for the habit of taking spirituous liquorsto excess tends to weaken the physical energies and incapacitates persons for labour. This induces a desire on their parts to endeavour toobtain the means of living without labour, and is no doubt an incentive to many of the crimes of violence brought before our Courts of Justice.

In reference to training chi'dren to crime, I fear there are a number of children, both here and in the neighboring colonies, but not so many here as in the other colonies, running about the streets, some possibly withoutparents, others without the control of parents, and others suffering from the vicious example of parents If the Government do not tske'them in hand, I fear they are becoming trained to become members of the criminal cl ss. I have described, and therefore it seems to me of the utmost importance that means should be taken to educate those children in a proper manner, and if they have already fallen into crime, to have some means of reformation in the grasp ot the State. Thatsulject ha 3 for sometime been brought before legislators of the other colonies, and I hope at no distant date it will be taken intoserious consideration in this colony.

These are the only general observations I have to make, and I will now address a very few worJs to you on the cases to be brought before you, because they are of such a nature as to require no labored comment on my part. You are aware that your functions differ very materially from those of a petty jury. The Grand Jury is cnlled sometimes the grand inquest of the country. The name imports that their function is not to try the prisoners, but simply to inquire, and for that purpose they only hear the evidence which? the Crown is enabled to bring against the prisoner. They hear no evidence for the defence. There is no cross examination before them— Counsel do not appaar before them, and their • duty therefore con>i6ts in weishingthe evidence the Crown is able to bring f>rward and pronounce upon their finding of a bill, whether there is a sufficient evidence to call upon the prisoner in the first instance to answer to the charge If there is, they find a bill ; but if they think the Crown has not been successful in putting before them sufficienkevidence to justify placing the prisoners in the dock, then of coursethey will ignore the Bill. It is the duty of the Crowa in all cas.s to mike a prima facie case, but if there are circumstances which the prisoner can argrue in defence, they come before the petty jury. There is a slight distinction between tie duties of Grand Jury and petty jury. You are aware the grand rule of law in criminal cases is, when the jury entertain a reasonable doubt of the guilt of the prisoner, it is their duty to acquit him. The meaning is, they are not to give effect to any doubt whatever, which may occur to their minds in the course of the evidence. For instance, they ma." doubt the truth of one witness, or the accuracy of the memory of another -but if when the whole case is gone through, a reasonable doubt remains on their minds, the lawsays they shall give effect to that doubt by acquitting the prisoners. But that some decree of doubt of guilt would amount to such a doubt of innocence as would justify the Grand Jury in finding a Bill, but there is safety to the prisoners by the more complete investigation of the Court that follows. Where thera is counsel -and where there is no counsel, it is the duty of the Judge to watch the case and see that the prisoner is not convicted on insufficient grounds.

Now aa to the cases. There are five cases for stealing from a dwelling : and there are also three cases of stealing from the person. On these Ido not think it necessary to make any observations. There are tour cases of forgery, and two cases of obtaining money on false pretences. It may be necessary in short to explain what the law considers a false pretence. There is this distinction that the fake pretence on which the prisoner obtains money or goods must be a faNe statement of some fact. It is not sufficient if it merelyamounts to a false promise. Some existing fact must be stated a* true, which in fact i? not true. If A B, the clerk of a merchant, states to some person he is sent to borrow a sum of money and has not been sent, and upon that statement themoney is given, and handed over to him, that is a false statement of an existing fact ; but no promise to do something in the future would amount to a false pretence, as it is no false statement of an existing fact.

There is one case of embezzlement. Until a statute was passed, rendering embezzlement a separate offence from larceny, there was some difficulty in convicting for embezslement, which implies that a person in some way or other is entrusted with money. If a person owes melnoney, and entrusts it to my servant to convey - it to me, and he appropriates it to his own use, and never delivers it, that would be embezzlement, and it differs from larceny in this, that it never was in my possession. It is not an offence at common law. There are three degrees of crime— First, there is taking out of my possession, which is larceny ; second, there is embezzlement, which is (he creation of a statute: and there is breach of trust, which, the criminal laws ■ have not yet reached.

There are two cases of indecent assault, and one of assault with intent to rob. Both classesare misdemeanours, and you will have no difficulty flrith them. THefe is another case which may create some little difficulty, but as a criminal

offence, a misdemeanour comes within the functions of the law. It is on attempt to commit suicide. Suicide is treated by law as an attempt to commit a felony. Formerly, suicides were jjubject to very severe punishment. The person ■was buried in a crosa road, and a stake driven through his body. This was no punishment to ♦he suicide, and has been very properly abolished. Still, it is an offence, and an attempt to commit it is a misdemeanour . There is also this distinc'-ion, that if a person w?is temporarily insane at the time he kills himself, he is not felo de se -it is not felony, and th refore is an abortive attempt ; if the person i-i insane at the time it is no misdemeanour, because misdemeanour is an attempt at felony, and it (iocs not amount to that.

The cnl> two other cases are cases of libel, and these are almost always prosecution promoted by the persons aggrieved. The law, in c\sea of libel, give* a doul-le remedy. First, be may Come before tbe court in a civil case for the purpose of obtaining c amages for the alleged libel. But he may also treat it as a public offence, tending to promote a breach of the peace, and in that way he may make the Crown the real plaintiff, he being merely the prosecutor to draw attention to the charge. In modern times a considerable change has t'iken place in tbe Jaw as to criminal pr< secution for libel Formerly the maxim obtained the greater the truth the greater the libel, as tending to promote a broach of the peace. Consequently, tbere was no plea cf justification allowed. Under Campbell's Act the plei of justification ia admitl ed in criminal prosecutions, as well is in civil eases - therefore, the maxim, "the greater the truth the greater the libel, is abolished— and a foolish maxim it wai, I will therefore request the Crown Prosecutor to send you in a few c°.se3 for your investigation, some of which, yr.u will pleise leturn as soon as possible, in order thdt we may have materials with which to go on here. The Jury retired. BILIi IGNORED.

The Gr^nd Jurj ignored the bill of indictment against John Jenkinson, for Lorse-stealing.

STEALING FROM THE PHR9OH .

William- Simpson was charecd with stealing money from tha person of W. Lakewood.

From the evidence it appeared that tbe prosecutor is a bricklayer, at Tuapeka, and on the 24th July last be went witb the prisoner to a pubtichouse at Wetherctone's, and on leaving that they went into another public-house. On the Sunday previously he had taken the precaution of taking the number of a five-puund note on an envelope, and had this with other money in his pocket when ha and the prisoser went out together. They lay down on a bank after leaving the last public liousp, and the prisoner was s'en by a witness named Fleritaffe to put his hand in the prosecutor's pocket, turn him over, and put Ms har.d into the other pocket, The evidence of the pro s ecutor and tbe witness Heritage was confirmed by a miner named Carrol, and the prisoner being charged with the robbery ws>s committed to gaol at Tu&peka. He vrn3 there searched by the gaoler, Consta.b'e Harlaw, and though the note was not found on Ms person, it was found on tbe floor where he had stripped on going 1 to bed. The note was identified, ami the jury, after a Bhort deliberation, found the prisoner guilty, with a recommendation to merfy on account of his youth. There being another charge against the prisoner, sentence was deferred until it was gone into.

EMBEZZLEMENT.

William Simpson was charged with embezz'ing the sum of LI 14s, the property of his employer, Joseph Scott.

Joseph Scott, tbe prosecutor, a baker at "Wetherstou's, employed the prisoner to t^ke bread to his customers iv the ''■ uapeka District. He had given him permission occasionally to treat a customer to a nobbier, but had never given him authority to spend such a sum as that which he "was deficient. A customer of the name of Bheveor bad paid to Simpson LI 14s in the presence of a storekeeper named Angel, which he had never accounted for

The evidence of the prosecution was corroborated by ths storekeeper, Angel, and the witness Sheveor, and the Jury found the prisoner guilty, but recommended him to mercy, on account of his employer having to some extent given him liberty t ) expend money.

His Honor, in passing sentence, remarked on the yeuth of the prisoner, who is only 18 years of age, and in consideration of ihe recommendations to mercy given by the juries in both cases, he sentenced him to nine months' imprisonment, with hard labor, for each offence- the latter nine months to commence when the term of the first sentence was completed.

STEALING.

Maria Brown was charged with ftealing a jacket and a sum of money from a carpet-bag, the property of Maria Macnamara. The prisoner was in gaol for this offence previously to the last Criminal Sessions, but being at the time enceinte and on tbe eve of her confinement, she could not undergo the excitement of a trial, From the evidence it appeared that she, with her husband and children, had arrived from England shortly before she was committed on tha charge ot stealing, and applied for^ lodgings at the Cragiebum Hotel, at which the prosecutrix was servant. The proseeutrix gave up her room to the prisoner, leaving therein a carpet bag containing a cobuig jacket and a sum of money. When the prisoner was about to leave the house, the prosecutrix found the carpet bag had been robbed, and the jacket body was found in the prisoners box. On being charged with the robbery she gave a sum of money, without explanation, to John Jlaisen, cook at the Craigieburn.

Detective Weile proved taking the prisoner into custody on the charge, and the evidence of the prosecutrix was corroborated by that of John Raisen.

The jury found the prisoner guilty, and His Honor, in' consideration of her having already been imprisoned bix months, sentenced her to two months' imprisonment, without labor.

ARRAIGNMENTS.

Andrew M'Gaw pleaded guilty to forging and uttering a cheque. Sentence deferred. Thomas AHonry, to three Beparate indictments charging him with forging cbequts and uttering them, knowing them to be forged, pleaded guilty to uttering the cheques, but not guilty of forgery. Thomas Rennie, charged with stealing from bis master, Thomas Curran, pleaded not guilty. William Loveday, charged with stealing several articles— a gold watch, a gold pin, chain, and hey, leaded

Thomas Gray pleaded not guilty to a charge of foming a cheque. Cornelius Murphy was charged with stealing a sum of money from the person of William Jones on the iilst June last, and pleaded not guilty > ou:s FitzToy and Fanny Elwarda, charged with stealing money, the property of Harriett Cook, pleaded not guilty. Michael Sweeney, charged with stealing a chamois leather bag, pleaded not guilty.

STEALING PROM TIIE PER3">H.

Cornelius Murphy was charged with stealing a sum of money from the person of Wm. Jones on Sunday, 20tti June last. The piosecutor stated that he and the prisoner had some drink on that o'ay for which he believed he paid, and had, when he m- 1 the piisoner, a purse containing L 25 in it with sovereigns and 3ilver. They had ddnk at various places, and ultimitelv went into a house in the Arcade where the prosecutor fell asleep, he believed, and on waking :rai*-.ed his purse. The piisoner, in a very shrewd cro?s-examina-tion, elicited that Jones had spent the previous night in a brothel — that there he had hail a share of three nott'ea of gin. They went from bouse to bouse drinking until both the prosecutor and bim«elf were ii a state if beastly intoxication.

Terence O'Loughlin anl J. Cahill, a storekeeper in Maclag^an street, both gave evidence that they -aw the prisoner wilh money in hi 3 possession, and that in fvt, he hal givan a sum of money into the hands of Cahillfor safe keeping, hut it could not be identifiel as having be'ong<.d to the prosecutor.

His Honor remarked that the evidence was weak, and left it to the Jury, who returned a verrlictof notguilty ; the prisoner was discharged

His Honor said *■ I will give you a warn ing not to get into a beastly filthy state of intoxicatioa and got into such a scraps again. If jou knew the disgust aD'l horror with which all decent people Jook upon a drunken man you would abshiin from getting drunk. Persons of ordinary sobriety look upon n drunken beast rolling along the street with horror anil rii gu^t, apart from the di grace and danger to wh'ch it exposed a person. The prisoner promised amendment, tlnnked his Honor and the Jury, and was discharged.