SUPREME COURT.

Otago Witness, Issue 2209, 2 July 1896, Page 12

SUPREME COURT.

IN BANCO. Tkursday.-Juke 25. ißefore his Honor Mr Justice Williams.) OLIVER V. T,VYU>H. An appeal from the decision of the stipendiary magistrate -at Duriedin. , , Mr D. D. Macdonald, with him Mr A. 0. Hanlon, appeared for" tho appellant, Thomas' Oliver, of Dunedln ; and Mr F. It. Chapman for the respondent, Mr W. B. Taylor, town clerk pf the Corporation of Dunedin. The appellant was on April 13, iv the Magistrate's OourF/Dunedln, convicted and sentenced by Mr JO. H. Carew, S.M., to two mouths' imprisonment foi the larceny of 1000 cubio feot of illuminating gas, of the value of'7s 6d, the property ,'of the Mayor, Councillors, and Citizens of the City of Dunedin. The appellant now appealed against the decision of the magistr*te, on the ground that he was not guilty of the offence. After the evidence had been heard, His Honor said : I think, it lms been proved beyond all reasonable doubt that this pips was inserted in the wall after Oliver took possession in April 1894. Even, however, if proof to that extent had failed it is abundantly clear that the existence of the pipe must have come to Oliver's knowledge some months after he entered on theoccupation of the .house. The evidonce for the prosecution has been materially assisted by the evidence of several, witnesses who were called for tbo defence— the evidence of Short, Woods, and Lawlor. Short examined this particular part of the cellar in November 1893. He saw the brickwork, and he says that it had the appearance as if it had left the buildera' hands, and in cross-examination he says: "I think the wall was a workmanlike job." At that time, according to Mr Short, there was a space of from five to seven inches between the top of the wall and the level of the floor. Mr ! Forrest says that when the building was originally i erected the bricks were put right up to the floor, or at any rate were intended to be put right up to the floor. It seems, however, reasonably poisible, looking at Mr Short's evidence, that they were not put right up to the level of the floor, but were loft, as Mr Short saya, a few inches below. The point of Mr Shott'a evidence is this : that he says that the wall wa3 a workmanlike job, and looked as it . was when ib left the builders' hands. It is highly improbable, therefore, that the wall bad been taken down and re-orected for the insertion of the pipe at the time Mr Shoit inspected it ; and it cannot be suggested that tha illicit pips waa put iv when the wall was origiuslly built. Scott did not observe the biickwork, but he speaks exactly as Mr Short does of a gap bit ween the top of the wall and the floor. Mr Tooooey noticed nothing peculiar about the wall, aud it may have gone up to the floor for all he knows, or I it may have stopped actually whore it did 6top. The only witness who*' speaks as .to the existence of the tap which was part of the illicit supply before Oliver took possession is Phillips. His | evldenco is unsatisfactory, because he, made a 1 different statement here from what he made in > the court below. I do not wish to say that la 1 making this &tatemeat-&e statement- «»_»* 1*

1 ' ' '■■— ' \ saw the tap— he said something he knows not t» be true; but it is almost certain he is mistaken* On the other hand we have the evidonce o% Brundell, who, in Mr Toomey's time", made a* specific Inspection of the pipes for the purpose of ascertaining whether there was an escape, and ha did find an escape of gas very near indeed td whero the tap which formed part of the 1 illicit connection would have been if that tap had then been in existence. Mr Brundell did not Bee this tap. It is true ho might not have seen it. ... but if; geenis almost certain that if the tap had thett been in existence he would have seen it. Shorty therefore, who waa himself a builder, who under' stands these things, and who examined the waif for a specific purpose, speaks of the wall aaf appearing as it was when it left the builders' hands, aud that it appeared to be a workmt»nllka job. Oliver went into possession in April 1894; There is no evidence that between November 189? and April 1894 the wall was in any different con' dition from what it was ia when Short saw it ; on the contrary, both Phillips and Armstrong say they noticed nothing at that time unusual about the wall. 'When, howfcVSr, we come down to Augunt 1894, we have the evidence of another witness for the defence (Lawlor) as to what he thought the wall was then like. -He says: "Thero we're bricks on the top p£ the stoso. There was a vacancy between the top avid the floor. The bricks looked looße. It looked as if they had not been laid properly. The bricks looked as if they had been carelessly laid. It looked as if it hod been poor mortar. It looked as if it had been knocked about." So that during th« interval— from the time that Short saw it and between the time Oliver took possession and too time that Lawlor saw it in August— the appearance of the will was entirely different. - Lawlor. also understood what", he was talking about, because he was a plasterer by occupation, and would be able to. form ft definite opinion. Then there is the evidence of Woods, and he says that when Lawlor was" "there he saw the pipe, that it was exposed, and that the bricks wore loose. Armstrong says the same." Id seems tom e that the evidence of Short as to the condition of the wall before, and the evidence of Woods' <\ncl Lawlor, show that the evidence which Armstrong gave as to the condition of the wall and also as to what he saw there is absolutely true. Whether Armstrong showed the pipe to Woods, as he xaid he thought he did, or whether he showed it to Roborts is really an immaterial circumstance. As Armstrong's ,ovidence has been so strongly confirmed on the main point I should bo .inclined to think- he did show ib to Roberts; since Armstrong says so. So In August 1894,' according to the evidence of witneseei, It jfl very evident the pipe, was exposed and the wall was locuo. Then the next' time we hear about the wall is from Mr Crawford, who finds two or three" loose bricks in the corner towards the couth wall, but finds the rest of the bricks mortared togethor, and the pipe embedded beneath a row of bricks. Now that must have been done after August 1894. Who had access to the * cellar? Whose interest was it to conceal this pipe t Oliver's, of course. He wa3 the master of the house. He had the control of the oellar ; and it appears also that, according to Lawlor'B evidence, he could tarn his hand' to a job of comenting or bricklaying. I think the evidenca is almost as conclusive as it could be, not only that Oliver after August 1894 hid the pipe again, but after April 1894 and between August 1894 he used the pipe a good deal. ' Armstrong's evidenca having; been confirmed as to what he saw about the pipe I see no reason to doubt his ovidonce as to what he stid he saw about the that the g*B was lit, and that he could light tho gas when it- was? turned off at the mater. We know that' accused took control, because he was there about it, and took care to turn it off at the meter. . We have the. evidence of Wilson, that when he was there' doing this job, the gas was turned off, as it must have been turned off; and we hava the .evidence of/Aimstrong that at other ' times when the meters we're turned off the gas could be lighted. Once, > however,"- make it reai sounbly clear that the accused was connected with this pipe, then 'very slight evidence is necessary to convince anybody - judge,pr jury— that ho used' the pips for the only purpose fur which that pipe wat in use— namely, to appropriate gas. It seemed also that before he knew that this pipe h«d been cut by the corporation officera he went down to", the cellar and pinched the pipe in the cellar. Now there wat no need to do that to prevent the gas . going into its legitimate course into the cellar. He could have turned the tap in the bar parlour. I find, therefore, this : That it is proved that in 1894'thls pfpo was in the possession and under the control of Oliver, and was used for the purpose for which it was intended. Ihen comes the technical, question — whether it has been shown that gas was stolen in 1806. on March 10, or within six months befdro. When the corporation officials came they detached a pipe— an illicit pipe'-and they found gas in it. That gas was »tolen gas. The question is whether there is evidence from which a jury could reason* ably infer that that gas was stolen within six months before March 10. I think that thsre iff. If it be shown that in 1894 there was a system' oxistiug for the appropriation of gas which was used for that purpose, and if there ii nothing to show that in the meautinie things have in any way alt«red, it is quite a legitimate inference for a jury to draw that that state of things continued up to the time that it was diicovered. That is. certainly the inference I draw. I think, therefore, for these reasons the appeal should be als* mused and the conviction affirmed. Mr Ohapman asked his Honor what about costs, and - ' His Honer made an order for compensation to the witnesses to be paid by the, appellant; appellant to pay costs, to.be taxed. The court rose at 5.20 p.ni. " '