SUPREME COURT.

Otago Witness, Issue 2076, 7 December 1893, Page 23

SUPREME COURT.

CRIMINAL SESSIONS.

Wednesday, December 6. (Before his Honor Mr Justice Williams and a

Common Jury.) PER JURY.

Henry Ginsberg, who was charged with having committed perjury in an affiliation case before the Resident Magistrate at Nascby, in which case the accused was defendant, was again placed in the dock, and the trial resumed. Mr B. C Haggitt conducted the case for the Crown, and Mr J. F. M Fraser defended the prisoner. His Honor summed up the evidence at considerable length, and directed the jury as to what under the circumstances would constitute perjury. Mr Fraser asked his Honor to instruct the jury that if any of the statements were made by inadvertence or in mistake such statements should not be taken as constituting the offence charged. His Honor said that he had already instructed the jury to that effect. In order to constitute perjury the jury must be satisfied that the statements were wilfully untrue and not made by mistake. At the same time if any of the statements made by the prisoner on oath were found to be wilfully untrue, although some of the other statements were not wilfully untrue

but might have been made through inadvertence, assuming it possible for that to be the case, the jury ought to couvicj. If any of the statements alleged in tho indictment to have been made were wilfully untrue that was Builicicnt to constitute the offence. The Jury retired shortly before 11 a.m., and returned at 1 15 p m. to ask a, couple of questions. The Foreman said that the jury wished to kuow first whether thuir verdict inubt be unanimous. His Honor : Certainly. '1 he Foreman : Thauk you, your Honor. Then there seems to be some mibapprehension among sjme of us a3 to what is meant legally by wilful perjury. His Honor : The telling of a lie on purpose. You cannot get it plainer than that. The Foreman : Just so. His Honor : If he told a lie intending to tell a lie. The Foreman : We are pretty well agreed as to statements being made that are not true, but there is a doubt in the minds of some of "us as to whether he made the statements knowing what the consequences would he. His Honor : Did he intend to deceive and mislead the court ? — that is it. The Foreman : That is the point on which they have some doubt. His Honor : That is the point you have to decide. Did he tell an untruth intending to tell a lie ? The Jury, without leaving the court, consulted for a minute, and then returned a verdict of " Guiity." Mr Fraser : With respect to the point that I took preliminary to my defence, as to the jurisdiction of the Naseby Court in dealing with this complaint under the Destitute Persons Relief Act, if your Honor does not agree with the view of the law I submitted I have to ask you to reserve the point for argument at the Court of Appeal. Hid Honor (after consideration) : I do not myself agree with your contention — I am not satisfied that your contention is right — but at the same time I see that there is a possibility of a contrary view being fairly arguable, and I do not want to deprive your client of a possible decision in his favour in the Court of Appeal. If the case were reserved he would have to come up for judgment after the sittings of the Court of Appeal — that is at the sittings in June next. He would have to be on bail. The Crown Prosecutor : Yes, your Honor. Mr Fraser : Bail could be found for him in the interim. His Honor : The bail would have to be of a very substantial kind after a conviction where so long a period elapses between. Mr Fraser : Undoubtedly. The question might arise, almost incidentally with that, whether your Honor thinks that the provisions of the Probation Act might apply. Bis Honor : Certainly not. Mr Fraser : Then the question doe 3 not come into consideration ? His Honor : No. What was the bail previously ? Mr Fraser : £100 himself and one surety of £200. His brother is a man in a fairly good position at Naseby. His Honor asked Mr Haggitt what he considered would be sufficient bail. The Crown Prosecutor : I think, your Honor, it ought to be doubled at least after conviction, and that the sureties should be carefully considered — the persons who are tendered as sureties. A brother of prisoner's was committed for trial on a charge of fraudulent bankruptcy, and admitted to bail on his own recognisance and that of another man, and then bolted. Mr Fraser : That was not my client. The mere fact that it was his brother has nothing to do with my client. The only effect of the circumstance would be that the sureties would be more careful. The Crown Prosecutor : And that we should be more careful about the bondsmen. His Honor : There ought to be two sureties, certainly. Mr Fraser said he recognised that tho bail should be substantial. His Honor : I think myself thafe the bail should be doubled — himself in £200 and two sureties of £400 each. I think that is sufficient, provided that the sureties are good. Prisoner then stood down, to come up for sentence on the 4-th of June, after the decision of the Court of Appeal on the points reserved. BURGLARY. David Fogarty was charged with having on the Ist of September last burglariously entered the bouse of J. Mathieson, at Tomahawk, and stolen therefrom a pair of trousers the property of Thomas Robinson.! Mr B. C Haggitt conducted the prosecution, and Mr C. M. Mouat defended the prisoner, who pleaded Not guilty. The Crown Prosecutor, in opening the case, said that burglary consisted in entering a house at any time between the hours of 9 p.m. and 6 a.m. In this case it would be proved that the entry was made through a window, which was opened with a chisel between 3.30 and 5 o'clock on the morning of the 2nd of September. The prisoner had been employed by Mr Mathieson, and knew the premises and the habits of the people living there ; ho was seen about the j place at the time ; the place was forcibly entered as mentioned, the trousers stolen, and threo days subsequently the accused pawned them in Dnnedin. Thomas Robinson, Frederick Bonar, George Latlmer, and Detective M'Grath gave evidence. Mr Mouat addressed the jury in defence. The only evidence v.hich materially connected prisoner with the commission of the crime was that be was identified by the witness Latimer, not as the man who stole the trousers, but as the man who brought them to pawn. Nobody saw him tamper with the window ; no one saw him aboub when the crime was committed. The defence was thab the prisoner was not the man who broke the window, was not the man who took the trousers, aud was not i he man who pawned them. He had had nothing whatever to do with tbe matter. Tee police bad gob hold of the wrong man Prisoner could explain his whereabouts on that night. He was in town — speaking to a cabman on the rank afc 10 o'clock, and then went to the O d Tiroes Restaurant, where ho slept for the nigbt. As it unfortunately happened, however, the cabman could not say what night it was on which Fogarty was speaking to him, and the owner of the restaurant could not swear that he slept there that night. Prieoner was therefore unable to establish an alibi. But there was really nothing against him excepting Mr La<ini(ir's memory, and the identification was not satisf artery. Prisoner feared ho had not had a fair chance when selected by Ldtimer at the police station. Learned counsel called attention to the chances of error in identifying pt-rsous charged wiub. crime ; pointed out the absence of mutivo on the part of accused, who wa<s an honest working mau ; asked the jury to infer from the circutnstancea that the robbery was committed by a person who was not familiar with the premises ; and in conclusion said that the prisoner was entitled to acquittal j even if only on the ground of reasonable doubt. The Jury retired at 12 50 p.m. At 250 they returned with <i verdict of " Not guilty." '

HOUSEBREAKINtt. Percy Arthur Quinlan, charged with breaking into the house of Mary Jane Bendall, Severn street, Oainaru, on the 18;h September, and stealing therefrom a quantity of jewellery, valued at £40, pleaded Not guilty. He was not defended by counsel. The Crown Prosecutor sai 1 that on the evening of the date mentioned Mies Bendall and Mies Willey, occupants of the house, went to the theatre, aud on returning they found that the house had been forcibly entered by a window, and the jewellery was missing. On the 22nd of that month prisoner disposed of a portion of the missing jewellery — a watch aud brooch — with Mr Marks, at Duncclin. Prisoner was in Oatnaru on the night of the 18th, and disappeared from there on the 20th. Under the circumstances related the onus was cast on prisoner to account for the stolen property. Evidence was given by prosecutrix, Agnes Willey, Detective O'Brien, and Robert M. Marks. The prisoner in addressing the jury said that he had bought the jewellery from a man in Oamaru, who sold it to him because there was no pawn shop in Oamaru. There was, he pointed out, no evidence whatever of breaking and entry, the evidence beiug in a contrary direction, and the only thing against him was that he had had the stolen articles in his possession. The way in which he had disposed of them, giving a receipt in his own name and selling them to a man to whom he was known, proved that he had bought them in good faith. Mr Marks's evidence was that he (the prisoner) had told him the good a were honestly come by, and that he might, as he suggested, at once place them in the window for sale. He had bought the jewellery in good faith, and the fact that he had been two and a-half months in gael, under prohibitive bail, accounted for his being unable to trace the man from whom he had purchased the articles. Only two of the least valuable of the missing articles had been sold to him, and he believed this had been done so as to entrap him and to leave the way open for the man who had stolen the jewellery to dispose cf it safely and easily. The Jury retired at 3.30 p m , and in 15 minutes returned with a verdict of " Guilty." The prisoner, who gave his age as 22 when called upon, said that this was the first serious offence of which he had been convicted. The Crown Prosecutor said the accused had been a medical student, and ought to have occupied a very different position. The police reported that he was a bad character, that he visited racecourses and brothel 3, and had been convicted of several offences, the most serious beiDg stealing from the person. His Honor sentenced the prisoner to two years' imprisonment with hard labour. EMBEZZLEMENT. William Armstrong Hawson was charged with having on July 14 last embezzled th» sum of £2 3s, the property of his employer, Peter Aifcken. Mr Haggitt conducted the prosecution, and Mr C. M. Mouat appeared for the prisoner, who pleaded Not guilty. The Crown Prosecutor said that the indictment was in the usual form for embezzlement, which was larceny as a servant. The prisoner was in the employment of Me Aitken, a tailor, to canvass for orders and collect accounts on a salary and commission. In this case tbe balance of an account (£2 3s) was received from Mr John Campbell, of Ashburton. A receipt was given for it, but the money was not paid over to the prisoner's employer or accounted for. When asked about it the accused denied that he had received it, and subsequently said he had been paid by cheque and had forgotten it, but it would be proved that the amount had been paid in ca&h. For the prosecution evidence was given by Peter Aitken and John Campbell. Mr Mouat submitted that there was no evidencre of embezzlement as the accused had informed his employer that he had received the money aud that a larger sum was still due to him for expenses ; the arrangement having been that he could deduct from receipts the expenses of business. His Honor thought there was a case to go to the jury. Mr Mouat then addressed the jury, contending that the evidence did not support an indictment for embezzlement, as the money had been spent on the trip, in accordance with an understanding previously arrived at. There was also no proof whatever of any intention permanently to convert the money to his own use and to deprive the prosecutor of it, which, he submitted, was necespary to support a charge of embezzlement. The case, however, on which the accused relied was that there had been no conversion, that the money had been spent in expenses on the trip, and consequently that he was entitled to an acquittal. The Jury after a brief retirement returned a verdict of " Not guilty," and the prisoner was discharged. The court rose at 6.25 p.m.

The arrivals in the colony last month numbered 2438, and the departures 607. The increase since the beginning of the year in the arrivals over departures is 7777. The Chief Commissioner of Crown Lands (Mr J. P. Maitland), the Chief Surveyor (Mr C. W. Adams), Messrs H. Clark and A. M'K'rroar left Dunedin yesterday afternoon for the interior of Ofcago for the purpose of classifying runs which are to fall in next March, and for the transaction of other business in connection with tha administration of the Land Act. ' In their absence there will be uo meeting of the Land Board next week. The Harness " eleclropathic " system (say* the London correspondent of the Argus) is again receiving an uncomfortably warm douche cf publicity. "The eminent consulting medical electrician," through the Medical Battery Company, Limited (a synonym for Harness), addressed a lithographed letter to the conductors of a number of newspapers, asking for "a free editorial," and implying a continuance of advertising favours in re* turn. Tho Pdll Mill Gazette, with wclldeaerved confidence ia the money-bags of its millionaire proprietor, ha« vealurod to "bell the cat," and has address* d itself to a vigorous exposure of what it terms ''Tee Harness 1 Electropathic ' Swindle." The attack is the more daageioui as ifc is calculated to damage, if not irretrievably destroy, the prospects of the issue of £55, COO worth of new prpfereoce shares ia tbe M>. died Balt-ry Company (Li nited) whuh have job 1 , been offered to the public. The exposure is mure thorough even than tlie recent attacks cf tbe Electrical Review p.nd Seu-nco Siftirgs, and is all^g-d to be largely based upen statements troai tho lips of Sir Harness's own ex-employes. Forno of tho revelations are decidedly piqnaul«*, aucl concern members of even high society. In the exceedingly ira-pr-jb-ibie event of a legal iuve-tigotion, the details procaise to ha spicy ia the extreme. Recent expeiifuce : however, shows that Mr Harness is actuated by a spirit of compromise and conciliation when confronted with antagonists of spiiit aud means. He has been known to pay largo damages andcobls to square even his own libel acsions, no that public curiosity may nob be fully gratified even now,