CRIMINAL SITTINGS. Tuesday, May 31.

Otago Witness, Issue 2310, 9 June 1898, Page 19

CRIMINAL SITTINGS. Tuesday, May 31.

(Before His Honor Mr Justice Pennefather). ; THEFT AND II.LEGA.LLX ON PREMISES. - John Patrick Livingstone Donovan and Henry Jeffard brought before tho court on an iadictment charging them with having on the sth • of May, atDunedin, stolen from the Leviathan , Hotel the sum of £146 the property of George Poole Bell A second count charged the accused v/ith having unlawfully obtained access to the " Leviathan Hotel with intent to commit a crime. The Crown prosecutor (Mr J. F. M. Fraser) conducted the case for the Crown, and Mr Hanlon appeared for both the accused, who pleaded Not guilty. On the jury being called Mr Hanlon challenged 14 Before the Crown Prosecutor opened the case for the Crown, Mr Hanlon intimated that he wished to take exception to the indictment as laid. It was the second and third counts which he took exception . to. His Honor would see that; each accused was charged that he did unlaw fully enter and was by night in a certain dwelling house. The indictment was laid under section 25S of the Code, which read: "Everyone is liable to five yeais' imprisonment with hard labour who unlawfully entei-3 or is ia any dwelling house by night with intent to commib any crime therein." Two separate offences were made alternatives, for, ' be submitted, if all the verbiage was in the section would read : Who unlawfully enters, or who is unlajvfully -in any dw.elling house,"- <fee. By combining ;fche two" together in one count made it a" double .charge. Under the old- pro--cedure that would"haVe been bad, but under the code (at section 334) the following provision was made :— " A count .shall not be deemed objectionable on the^ ground that it charges in the alternative several different matters, acts, or omissions which are" stated in the 'alternative in the enactment'describing auy crime, or declaring the matters, acts, or omissions charged to be a crime, or on the,ground that it is double or multifarious. The accused may at any stage of the trial apply to the court to amend or divide any such count on • the grounds that it is so framed as to embarrass him .in his defence." _ Under that section learned counsel asked that his learaed friend be ordered fey the court to amend his indictment. As the case developed his Honor would see that the question 'of whether there was any unlawful entry would be of very serious moment, and he wanted now , as it would embarrass him in his defence if it was not so amended, to have it amended on that ground. The Crown Prosecutor submitted that the indictment was perfectly good as it stood. Section 364 provided that the count shall not be deemed objectionable on, amongst other grounds, that of being double or multifarious. He was unable to see how his learned friend was prejudiced. The point which iris learned friend might address himself to was the exact point of whether or not, having obtained access under the appeal that they desired to obtain lodgings that" they had unlawfully entered the house.- At the present stage he was prepared to make a stand on the indictment as at present framed. His learned friend could address himself on that point now, if he liked. Mr Hanlon : That is not my point at all. His Honor: Mr Hanlon's point is that th« prisoneis are charged with having either unlawfully entered or were unlawfully ia a dwelling house. If that is so, it seems to me that the matters should be' stated separately. They are alternative points to take. The Crown Prosecutor : They can be separated. If your Honor is of opinion that the counts should be amended hy being separated, I am quite propared to do so. , His Ho or : Very well. Then the indictment can be altered in that way. The indictment was amended accordingly. Mr Fraser, in opening the case for the prosecution, said th.: accused were charged with having stolen the sum of £146 from ope John Poole Bell, at the Leviathian Hotel, and 'with being on the premises with intent to commit a crima -namely, to steal the money ; that was with unlawfully entering or being on the premises, as the case might be. There were, therefore, two chaiges ;in the first place the ordinary charge of having stolen money, and in the next place with having entered the premises with the object of stealing it. The facts of the case were mainly circumstantial, and in this, as in other cases, he asked, the gentlemen of the jury to disregard anything they might have read or heard respecting the case, and to deal with it as it was now presented to them. The learned Crown prosecutor then at length opened the facts of the case, which have recently been published. * Evidence for tlie Crown wag then given by Mrs Eliza Clarke, Mrs Silk, George Poole Bell, John Murdoch Sage, Matthew Kinniard, Plain-clothes Constable Boddam, and Detective H'Grath. ' The evidence for the prosecution was concluded at 3.25 p m., and this closed the case for the Crown. No evidence was called for the defence. Mr Hanlon, in addressing the jury for the defence, said that the indictiasnt as amended chaiged the prisoners with jointly stealing £U(i, the property of George Poole Bell. The second and third counts charged the accused separately with having unlawfully entered the premises of .Mrs Silk with intent to commit this crime of stealing Mr Bell's money, and the' fourth and fifth counts charged them for that they were unlawfully in- the house, no matter how they entered, and that they were there with intent to commit that particular crime. Firat as to the actual theft of the £146, the learned counsel submitted that there was absolutely no evidence whatever which would justify the jury in convicting the accused, oV .either of them, on the charge of stealing the £146. The evidence upon ■which they were asked, to -do that wasthat these two men, some days before the robbery was alleged to hays been committed, went to a boarding house in Moray place, took a room, with.two single beds in it, in which they proposed to lodge; that they both slept there several nights, and on the night of the robbery only one was there according to the evidence, which was- that on the following morning only one of the beds required making. The theory of the Crown was that the accused went to Mrs Silk's and took rooms in order to commit the crime ; that one escaped from his room by going through the window and down the fire escape, and that the other — Donovan — was arrested. That sounded very well, but was there any evidence to ptove it? What the jury had to ask for was proof — to stand between the " Crown and the prisoners at the bar, and to realise that the Crown were bound to tender sufficient evidence to justify a conviction, and thb 1 :, otherwise, the verdict must be> one of acquittal. What proof had the Crown brought before them to justify a conviction? His learned friend the Crown prosecutor hart said they must draw inferences, and asked them to infer that because two men, one of whom was one of the accused, went and engaged rooms, and one of them escaped through, the window in the night, the accused persons had committed the robbery which had taken place in" the hotel that night. That was really no proof at , all. The -learned Crown prosecutor was simply asking the juiy from extraneous facts to dr.iw inferences which it would really not be proper to draw. The jury should not forget that a policeman had been recognised as one of the men who j was at the Leviathan, so that it was merely by a fluke that an innocent policeman was not in the dock charged with this robbery, The learned counsel then called attention to the entire absence of what was usually so common,, evidence of incriminating statements by th* accused, nothing : whatever having been said that would bear any j guilty construction. There was, he submitted, ! absolutely nothing to connec-i the accused with the actual robbery. Regarding the other four counts, learned coun*el remarked that there were generally a lot of counts in an indictment when the case was , a ' weak one, in the hope that the accused might be caught on one of the counts of the indictment ; over and above the one chargiug them with the kctual theft. Then as to the count charging " them with having unlawfully entered with intent to commit a crinie. That, too, had to be proved to the satisfaction of the jury. What evidence was then that the«e men entered the Leviatlssm

unlawfully. He submitted that there was no evidence to show that they were unlawfully upon the premises, but, on the contrary, it was distinct and emphatic that they were there lawfully, UaviDg gone in tha ordinary way and asked for rooms and paid for them. He challenged the Crown to say that that was unlawfully entering a house. Nor was it conceivable that they knew of the money and went with the iatention of stealing it. The Crown prosecutor asked the jury to say that the men were unlawfully on the premises bacause they stole the money, and tv infer that they stole the money because they were unlawfully on the premises. That was not proof, but wa3 merely reasoning in a circle, and proved nothing at all. Then there was only evidence as to Donovan being on the premises, and learned counsel addressed himself at length and with vigour to the question of identification, submitting that ifc was entirely unsatisfactory, aucl tbat the Crown had failed to adduce any evidence which would justify a conviction of either of the prisoners on any of the counts of the indictment.

His Honor, in summing up, said : Gentlemen of the jury, — This is a very serious case, and you have had the advantage of having had a very clear statement mr.de by the counsel for the prosecution. Then you have listened to a number of witnesses for the prosrcutiin, all of whom have given their evidence in a remarkably clear and distinct rasnuer ; and as I have no doubt you will yourselves have observed they have not bsen shaken ia cross-examination. For the defence yoii have had every argument that can be brought forward on that side— very ably brought forward by the counsel for the accused. I propose to comment on -the evidence, but before doimg so there are a few remarks I desire to make. In- t.he first place it is said that you are tolools;witb suspicion on the case because of the, number of counts in the indictment I may tell you as a matter of law that the charge being against two prisoners saveral counts are necessary, and th*t -tbere are uot more than an , ordinary number of counts in the indictment. It is said that this is a matter of inference. I J»ay tell you that; ia a large number of cases it always muat be a matter of inference. There are hardiy any cases brought forward in whicb. a person ib actually seen to commit a theft. What you have to consider is whether theie has been such, a chain of evidence brought forward as can only be explainable on the hypothesis that the crime has benn com mitted by the prisoners at the bar. Ia this case there .is no doubt a crime bas been committed. That the money was taken is Dot disputed ; bub as to whether the crime was committed by the prisonera at the bar it is for you t« say from the various circumstances that have been brought forward by counsel for the prosecution, and from those circumstances not taken individually but taken as a whole. A a a chain of evidence can it bs otherwise rationally explained, or is the or.Jy rational explanation you as practical men can give of it that the crima must hare been committed by the piisoners? I tell you also as a matter of law another point. You understand that on the first count of the indictment the' "prisonera are charged with stealing the money, and that on the second count they are charged with having unlawfully entered the dwelling house by night. Now, if the prisoners entered the dwelling house merely .with the ordinaiy intention of taking rooms for the night, and not with any intention of committing a crime, but that, after they bad gone there and taken rooms, at some later period they cbariged their minds and resolved to commit a crim;, they could not be convicted of having unlawfully entered. Bu tif they took th c rooms with, the intention of committing a crime, during tho night time, with that intantioa in their minds wfipn they entered tha premises, that would make the entry unlawful. That is distinctly laid down in law. There is in the New Zealand Act a second provision that a man is liable to five years' imprisonment who is in a dwelling house by night with intent to commit a crime ; or the reading might be '' unlawfully is in »ny dwelling house with intent to commit a crime," but it could be fairly argued that it would be hard to see how anybody could be in a house " with intent to commit " a crime in any sense but unlawfully. From these words it appears to me that if persons erjtered perfectly lawfully, but changed their minds and -resolved to commit a crime, tbeu from the moment they fixe,d that resolution in their minds, to commit a' crime, they would be in the dwelling house unlawfully. I tell you. that as a matter of law, and it is for yon to take it from me as law ; but it is for you to_ form' your own judgment upoa the facts. His Honor then summed up the evidence, commenting upon various points and laying it in afiuoimarised form again before tbe jury. In concluding, his Honor again reminded the jury, in looking upon the whole of the facts, in the case, not to treat them individually but as a whole, and concluded by saying :— " If, on the other hand, you find the evidence is, ia your opinion, co weak that all these circumstances taken as a whole can be fairly explained in such a way that the guilt of the prisoners is not forcibly brought home to your minds, it is your duty to find 'a verdict of not guilty." The jury "retired at 4 40, and at 5.15 jj.m. returned a verdict of Guilty against both prisoners.

-When called on,' neither of the prisoners made a statement. Donovan gave his age as 25 and Jeffard his as 27.

The Crown Prosecutor read a list of convictions against Donovan for theft and false pretences* and being illegally on the premises, and a list of five convictions against Jeffard, four being for vagrancy and one for theft by means of a confidence trick. The police report, he said, was that Donovan was a daring thief and y an associate of thieves, who had done no honest work -for six: years, and that Jeffard was a_ clever thief who made no effort to got an houe&t living. "His Honor, in passing sentence, said : You, John Donovan and you Henry Jeffard, boih stand convicted on the clearest evidence of a very grave crime, a crime that evidently was premeditated and carefully thought out. You both have extremely bad- records, so bad that I do not think a light sentence would have any effect. You appear to me to be equally guilty, and" the. sentence of the court is, therefore, that each of you be committed to imprisonment. in the Dunediu Gaol, with hard labour, for the "apace of five years.

STEALING FROM 'THE PERSON. John Reid, who on the previous day had pleaded Guilty to a charge of stealing from the person, was again brought'before the court.

Mr Haul n, who appeared for the prisoner, said the accused had been remanded to see if employ--ment could be found, as that was necessary in order that the provisions of the Probation Act should bs complied with. That had been clone, the gaol chaplain having obtained a promise of work for the prisoner. His Honor said, as he had intimated, he should be extremely sorry to send the yotmg man to prison, and now' that work had been promised he ordered his release on probation for 12 months, on condition that he paid £5 4s at the rate of 2s weekly towards the cost of the prosecution. ' ■ The court adjourned at 5.20 p.m. until 10.30 tills W ednesday morning).