Thursday, June 1.

Otago Witness, Issue 2363, 8 June 1899, Page 27

Thursday, June 1.

His Honor took his seat on the bench at half-past 10 a,m.

A SERIES OF THEFTS,

Mary Banwell and Charles Banwell were charged with, on or about the Ist November, 1898, at Dunedin, stealing two rolls of cloth, the property of Louis Faigan ; a second count charged the accused with, on or about the 3rd December, 1F.93, at Dunedin, stealing a go-cart, the property of Frank A. Hooper; a third count charged the accused with, on or about the Bth April, 1899, at Dunedin, receiving two rolls of cloth, knowing the same ■to have been stolen ; and a fourth count t-'iarged the accused with, on or about tho Bth April, 1899, at Dunedin, receiving a go-cart, knowing the same to have been stolen.

Mary Banwell pleaded guilty, and Charles Banwell not guilty. Mr A. C. Hanlon defended.

The female prisoner was ordered to stand down, and the case against her husband was heard.

The Crown Prosecutor (Mr J. F. M. Fraser), in opening the case, said that section 262 of the Code, which referred to this offence, provided that anyone was) liable to Fcven years' imprisonment who obtained any- 5 thing, by crime or acts which would constitute a crime, knowing such thing to have been dishonestly obtained. A certain degree of knowledge was therefore essential in the offence. He proposed briefly to tell the jury, subject to his Honor's corrections, what de-gree-of knowledge was necessary. It had been ' laid down that it was not necessary for the prisoner to have seen the articles actually stolen. If was sufficient if the jury thought the circumstances accompanying the transac • ion were such as to make the prisoner believe the goods had been stolen. With re-s-pect to the motives with which he received Uie goods, he referred to the case of Rex v. Richardson and others, where it was held that whether he made any bargain or not was a matter of no consequence. If he received the property for the mere purpose of concealment he was as much a receiver as if he had purchased it. It was receiving within the meaning of the act. It was further laid down, in Ifegina v. Payne that if a receiver took, without profit or advantage, but merely to assist a thief, it was precisely the same. The goods in question were found in the house of accused, who was a married man, and it had been laid down in Banks y. Cox, that where stolen gtfods were found in the house of a married man they must be considered in his possession, and not in the possession of his wife, unless she says something to implicate herself, in which case it was left to the jury to decide. Prisoner was a carter living with his wife in Dunedin. The house in which they lived was taken in his own name, and when, from information received by the police, the house was searched, a very largo quantity of stolen property was found in it. It would be .proved that the articles produced in court .•wore all stolen, and were found in this house. They were a varied assortment, and in quantity were sufficient to stock a shop. The fact of all this stolen property being found in acvuasd'a possession was sufficient to raise a

prima facie presumption against him that if he was "'not a thief he was a receiver. Accused was therefore charged first with having stolen the goods, and secondly with being the receiver of the goods, knowing the same to be stolen. It was quite possible it might be proved to the jury's satisfaction that the actual stealing was not done by prisoner, but it was submitted by the Crown that the evidence against him proved that he was guilty of the crime of receiving. It would be a i matter for the jury to form a conclusion upon j after they had heard the evidence, and after ' hearing his Honor's exposition of the law bearing upon it. He submitted, on behalf of the Crown, that accused might be -judged by : his conduct and actions. He allowed his house to become a depository for a mass of stolen property, sufficient to stock a shop — property not stolen from one person at one time, but from many persons at times extending over a considerable period. I Mr Hanlon asked his Honor's ruling as to whether the Crown had a right to open that goods other than those mentioned in the charge had been found in accused's house. His Honor held that the fact that goods had been found in the house was prima facie evidence of possession. The fact of other goods being found was admissible in evidence, ■ but when the case got to the jury it would be j a question whether the possession proved was sufficient evidence of possession under the statute or not. The Crown Prosecutor (continuing) said that had the accused been an honest man he j would have taken "such steps when 1 the first stolen property was re- j ceived into his house as would have < prevented any repetition. On the contrary, ' he allowed his house to be filled by the fruits of successive larcenies, and when detection ensued he said: "I took no part in this ■ matter. My wife is guilty; lam not." The ' question the jury had to answer was: "Had 1 the male prisoner possession or control, either jointly or exclusively, with the thief, over the articles stolen, knowing the articles to have been dishonestly obtained?" The house was bis dwelling, and the goods were harboured by him, and he must be taken to have known that the goods were stolen. His possession, moreover, was long-continued, and had become a practice. It was not a case of a single act of harbouring. Had he sold but his chattels, what did the jury suppose would have become of the stolen property? It would have been sold, and in all probability the prisoner would have pocketed the proceeds. To find the prisoner not guilty of receiving in this case would be to lay down the proposition that it was legal for a man to re- , ceive into his house all his neighbour's pro- 1 perty, stolen with his knowledge by his wife, ! and to declare that a married man who kept ' what was practically a common receiving- '' house was immune ? from punishment. No more could be proved against him than that ■ ho allowed the stolen property to be con- , cealed in his house. That shortly was tho j position counsel proposed to submit to the \ jury. The only possible defence might be \ that the prisoner's wife stole the articles ; ac- > cused took no part in the theft, and was an absolutely innocent man. If that was so, ; the jury would have to decide as to the result of the prisoner's conduct from the impression it left on their minds. Accused was a carter, presumably in receipt of a carter's wage ; lie had nine children in the house, and the jury must know that in that case every shilling ; that was to be expended out of the man's | salary had to be carefully weighed. A car- ■ ter's wages did not go very far, and yet here were all these articles brought into the house ' and openly displayed. He submitted that the common-sense conclusion the jury must come to was that . accused knew the goods were stolen.

Evidence for the prosecution was gi^en by Aaron Faigan, Rose Faigan, George Rankin, Frank A. Hooper, Herbert Hunt, Joseph Marton, and Constable Cooney. , Mr Hanlon submitted there was no case to go to the jury. Even admitting that the goods wore found in the possession of the accused, he could not after this lapse of time bo called on to account for them. There was no presumption of guilt against him, because it had not been proved that the goods were recently stolen. One of the articles was missed about the Ist Novemher, and it was some time during April that the call was made by the police at the accused's house — some five months after the goods wero alleged to have been stolen. As to the go-cart, it was missed on the 3rd December. It was an article that could readily pass from hand to '■ hand, and, after the lapse of four, five, or six months no i^resumption of guilt oould be raised against the prisoner, even though the article was held by his Honor to be in the possession of the present accused. Apart from that, he submitted that whatever evidence had been given for the Crown went to show that the rent for the house was paid by the wife, and the wife had a right to hold property on her own account, and if she stole property tho only place she would take it to was her home, and it did not follow, because she took it to her own homo and deposited it there, that, tho husband residing there, he could be called on to account for the possession of the property, even if it were recently stolen. Seeing the woman admitted the theft of the goods, it was incumbent on the Crown to prove that the goods were actually taken into possession by the prisoner ; and that sho parted with the custody and control of the goods to the prisoner ; if not that, that they were in joint possession. But before it could be held that they were in joint possession it would have to be proved that there was more than a mere passive consent on behalf of tho husband. There was nothing proved by the Crown to show that he took any active part in the custody of the goods. ' The Orown Prosecutor contended that there was a prima fapie case against the accused of being guilty of receiving. He was the joint occupant of the house with his wife. Mr Hanlon said there was nothing before the court to show that the wife ever transferred tho property from herself to hor husband or anybody else. Unless it could be shown that there was something active on the part of the accused ho could not bo convicted. His Honor : I do not think I ought to withdraw tho case from the jury. All we know about the houEe in which accused and his wife lived is that it was rented from a gentleman at a weekly rental, and that the wife usually paid the rent. There is nothing in these circumstances from which it might be inferred that tho husband was not the head of the house, and that he had not control of the house and of the persons and things within it. The goods were found in the house. That is prima facie evidence of possession by the husband. So far as tho count of receiving is concerned, I do not think Dring's case applies. That is a case in which the wife had received stolen property and the husband passively consented to what his wife had done without taking any active part in the matter. The case which, I understand, the Crown suggests is made clear on tha second count is that the r>ronerty was not

received by the wife, but was stolen by the wife, and was brought to the house of which accused was the head, with his knowledge and consent, and that he gave the goods shelter in the house. That is a, different state of things from what happened in Regina v. Dring. Of course, I do not pTe-judge in any way the guilt or innocence of accused. At Mr Hanlon's request, his Honor consented to reserve the point under section 412 of the Code. j Mr Hanlon then called evidence for the defence. Charles Banwell, the prisoner, said he was a carter by occupation. He had worked for I many years for Mr Duthie. For some years , he had lived in Grange street with his wife i and family. During carting hours he usually j left home between half-past 6 and 7 in the ; morning, and his work kept him away all day. ■ He might return at a-quarter past 6 or later, j and he had been as late as 11, but a-quarter ' pa-st 6 was the earliest. He stole none of the goods mentioned — the cloth and the go-cart. He did not know the two rolls of cloth were in the house. He saw the go-cart, but he did not know it had been stolen. He got no information from anyone as to where it came from ; he never a?ked for any. His wages were £2 ss, out of which he paid Is for insurance. He gave his wife £2 weekly to keep the house. Sometimes he got more than £2 ' ss; it had gone up to £2 14s. When he got extra money he sometimes gave his wife more than £2. The Tent was 8s weekly, which his wife paid. By the Crown Prosecutor : His average ! weekly wages for the 12 months 'prior to ] April last might be £2 a-week. The rent was Bs, and he used to keep two or three shillings off, leaving his wife 30s or so on which to keep the house. He had nine of a family. Two of them were working, bringing in 238 or 24s to the hou^e. He had earned a lot of money independent of his wages. He did not know what money his wife had. Four years ago she had £17. Sho had no independent income, nor had witness, though he earned money independent of his v/ages. He did not know if his wife had saved any money within the last four 1 years. Witness and his wife slept in the front room. Witness paw tiie tubs of crockery in court. He had also seen the goods in his house, and seeing so much of it he accused his wife of spending mone3 r uselessly and of wasting money. The first time he saw the silver teapot was in the Police Court. He saw the two go-carts in the house. He said to his wife, " What do you want the two go-carts for?" and his wife replied that the small one she had bought to wheel one of the boys, who was a cripple, to school. Witness considered that a feasible explanation. Four of the vases -were of the same kind, but he did not attach much importance to that. The only stuff he saw in the house was the glassware and the go-carts. He did not see the cloth. He saw the clock. He was not in the habit of opening any of the cupboards in the house, except the one in the kitchen. — (Laughter.) Mary Banwell, wife of the male prisoner, said that when she stole the goods she took them to her house. She did not tell her husband. He did not know anything about the matter, and did not see what she brought home. The cloth was -kept in a box in the front room. The glassware was put on the mantelpiece. Her husband told her she was foolish to buy so much rubbish, and witness replied that it was no business to him what she had done. Witness paid the rent. Generally, her husband gave her £2 a-week, and her two boys 24 s a-week. Her husband spoke about the go-cart to her, and she told him she had bought it. When she got the second go-cart he auked what she wanted it for, and she said sho had got it for Franky, who was a cripple. By the Crown Prosecutor : The brown roll of cloth she took from Faigan's counter. The oihcr roll hud been taken about two months bofoie. Her husband had nothing (o do with the fclealing of the glassware and the silver. Sho had all to do with it herself. The goods wore taken within four or five months prior to her arrest. Mr Hanlon addressed the jury at some length and with much vigour, dealing with the evidence. The case for the defence was that the wife was a kleptomaniac, that she stole the tilings from time to time, hid them away, and when asked concerning tho vases and things, which from his view he had properly described as "rubbish," the wife had told the accused to mind his own business ; that she had bought the things and should do as she liked with the money. The learned counsel submitted that there was absolutely no evidence of theft on the part of accused, for the wife admitted that she was the thief and that hor husband had nothing to do with it. Then as to the question of receiving, the three things to be proved by the Crown were: (])" That the things were stolen ; (2) that they were received by tho accused; and (3) that he received them, knowing them to have been stolen. That the goods had been stolen was admitted; the wife had said she had stolen them, but was there an atom of evidence upon which they could Fay that tho things were transferred from the wife to the husband, and that at the time they were transferred, the accused knew, or ought to have known, that his wife had stolen them? Learned counsel submitted that when the jury looked at the whole of the circumstances, and considered that the wife had stolen them and had put them away in the places where they were found by the police, they could come to no other conclusion than that tho man who did nothing but work from early morning to night, and merely ate and slept in his home, took no interest in these paltry things that were around the house, and knew nothing of his wife having gone out and stolen ' them. It should be remembered that this

them. It should be remembered that this man gave his wife £2 a week, that she received £1 4s from her children, and that she had, therefore, for the wife of a working man who lived in a cottage for which 8s per week was paid, money enough to spare a few shillings weekly for the purchase of ornaments feuch as those exhibited, if she desired to do so. Did they think that a man like the accused, a carter who worked late and early, would have any idea of the value of thpsja

i things. Taking into consideration tlie facts, and that the wife had gone into the box and had told them the whole story upon oath, the jury were entitled to come to the conclusion that the story given by the accused and his wife was correct. The Crown had not brought forward a tittle of evidence to show that the story for the prosecution was true, and the jury should have no hesitation in saying that th 9 accussed had no guilty knowledge in connection with the matter, that he knew nothing at all about it and was entitled to their verdict. Mr Eraser addressed the jury, and, after reviewing the evidence, expressed the opinion that as the accused had been surrounded by enough stolen fancy goods to stock a shop, if the jury was satisfied with the explanations offered, then the accused was fortunate in having found so credulous a jury. | His Honor summed up. I The Jury retired at 3 p.m., and returned in

a quarter of an hour -with a verdict of " not guilty."

The same accused, Mary Banwell and Charles Banwell were further charged with stealing, on or about the Bth of April, one butter-dish, two teapots, 16 vases, one waterset, one clock, and one^mirror, the property of John Thomson Carter. A second count charged them with receiving the goods, knowing them to have been stolen.

As formerly, Mary Banwell pleaded "guilty," and Charles Banwell "not guilty."

Mr Hanlon appeared for the accused. ,

The case was similar to the former one both with regard to the prosecution and defence.

Evidence for tho Crown was given by James Patton, J. T. Carter, R. P. Ward, John Cooney, Joseph Martin, and for the defence, by the accused. Charles Banwell, and his wife, Mary Banwell.

Counsel for the defence and Mr Fraser, for the Crown, having addressed the jury, hib Honor concludnd his summing-up at 5.20 p.m. The Jury, after deliberating for 15 minutes, returned a verdict of "Not guilty," and the male accused was discharged so far as these indictments were concerned, but retained in custody to serve a sentence passed upon him in the lower court.

Mary Banwell was also charged upon an indictment, containing four counts, with stealing a quantity of drapery from Harry Bull and Thomas Edgley, on the ISth of July. The accused pleaded " guilty." and on being called upon, gave her age as 35. In answer to the usual challenge,

Mr Hanlon said : The prisoner wishes me to say for her that she has been in the colony for 20 years, and married for 17 years, and that during all that time, until within the last few months, she has borne a good character and has looked after her home and her children. It is only since the birth of her last child that she has given way to these thefts. She has felt quite unable to resist the temptation to steal. She does not know the reason of it, but 6he has given way frequently to the temptation. That has been so only sir.cc the birth of her child, which is about nine months old. From that time she has been unable to keep herself free from tho insane desire to take what does not belong to hor. His Honor : What is known of her? Mr Frarer : There are 11 convictions for theft within a -period of 12 months.

His Honor: When was the first?

Mr Fraser : The first theft is mentioned in the present indictment! and was committed on the 15th of July.

His Honor : What was known of her previously ?

Mr Fraser : There is nothing else against

I'fV. His Honor: When was the last child born? Mr Hanlon : On the' 28th of July, last year. His 1 Honor : Nothing further is known of her and her husband ?

Mr Fraser : Till the 7th of April they did not come under the notice of the police. They have nine children, and all but tho two eldest ones have been sent to the Industrial School.

His Honor : It is a curious case, and really does look like a case of kleptomania.

Mr Fraser

It has that appearance

His Honor : One hardly believes in kleptomania, except as a complaint for which gaol is the cure ; but this really does look like it. Mr Fraser : Of course, if a woman has an uncontrollable impulse to "lift" things as sho walks about the streets, that is a little troublesome for the rest of the community. There is no institution in which she could be kept.

Mr Hanlon: She is not alone in that. People in very high places have been subject to the same thing.

Mr Fraeer : TJiore has been no realisation of the things stolen — no sales.

His Honor : That is what points to a kind of mania, an^if it was co she certainly would be likely to conceal it from her husband. I hare great difficulty in knowing exactly what to do. I think probably the best way would be to sentence her, and to recommend that &ho be medically examined.

Mr Hanlon : Her husband says that during the 17 years they have been married they have lived amicably together, and that he has never seen anything the matter with his wife during tho whole of that time, and that he is at a loss to know the cause of what ha 3 recently happened.

His Honor: It is curious^after being married for 17 years, and leading an honest life, that this should have occurred. They must have been found out if they had been dishonest, seeing that they have lived for 10 years in tho same place. Mr Hanlon : The man has worked for 12 years for Mr Duthie, four years for Mr James Gibson, and two years for Mr Keast, so he seems to have kept his situations well ; and man and wife have always got on well together.

His Honor : I shall pass a sentence of two years' hard labour. It will always bo open to the Crown, if it appears on investigation that tho offence was committed through a want of mental capacity or of self-restraint, arising from some change of system, or from any other cause, to mitigate the sentence, or otherwise to deal with the accused as may be thoughtTproper. The circumstances are certainly peculiar, and it does strike one, looking at the previous life of the accused, that if there is such a complaint as kleptomania this is an instance of it. However, that would be for experts to decide later on. I shall recommend that the case is one for medical investigation, and in the meantime shall pass a sentence of two years' imprisonment, with hard labour, on each indictment, the sentences to be concurrent. The Court adjourned at 5.40 p.m.