ONE OF THE ACCUSED COMMITTED FOR TRIAL.

Otago Witness, Issue 2368, 20 July 1899, Page 15

ONE OF THE ACCUSED COMMITTED FOR TRIAL.

Hugh Smith and James Taylor, both of Balclutha, ■were charged before Messrs F. Wayne and J. E. Brown, justices, at Milton, on Saturday, with the theft of 10 sheep, valued £8 ,15s, on June 15, the property of John Miller, farmer, of Puketipo, Hillend. i Detective M'Grath prosecuted. Mr Solomon i defended accused Smith, and accused Taylor was defended by Mr Macdonald. Detective M'Grath, in opening the case, said that the prosecutor was a farmer at Puke- ' tipo, near Hillend. The accused were both drovers, residing at Balclutha. Miller had 1130 sheep in a paddock, and employed Taylor to take 780 of them to Buruside freezing works. Taylor employed Smith to assist him. On June 14- the two accused and Miller went to the paddock for the sheep. Smith and Taylor counted the sheep, and Miller noted the tallies. When they got the sheep out Taylor said there were 780, and Smith made it . 781. Miller and the two accused counted the remaining sheep, finding that there were" 328. One of the accused asked Miller how it tallied, and he replied that it was short. He J told the accused to recount before starting in j the morning, and make sure that they had j the right number. Miller gave the accused \ two " scrags" for their dogs on the road, j .Allowing for these two sheep and two that were found dead, there were 18 missing. Miller then reported his loss to the police. Inquiries were made, and it was found that the accused. arrived at Milton on June 16, and sold 10 sheep to Matthew M'Laren, butcher, who paid for them by cheque. On Saturday, the 17th, they arrived at Henley. Taylor cashed M'Laren's cheque there, and sold ano- ; ther sheep to Mrs M'Kegg, and also gave her one of tho " scrags." On the 19th they arrived at Burnside, and delivered 779 sheep. Miller received the sale note for this number, I and afterwards met Smith, who said one of the sheep had died on the road, which accounted for there being one short. M'Laren killed eight sheep and two other 3 were found in his possession. Miller had identified these two, and also four skins that had been recovered. The other " ecrag" was disposed of by Taylor to a shepherd at Green Island. These were the facts of the case, and he thought that when their Worships heard the evidence they would see that there was aprima facie case, and commit the accused for . trial." John Miller, farmer, said he had 1130 fat sheep in a paddock at Puketipo in May last. He knew both the accused. He employed > Taylor, who was to choose his own assistant. On June 14- they both came to him, and he told them he wanted them to drive sheep to Burnside. They all went to the yards, where the two accused commenced to draft the sheep, j and witness noted the tallies. At the finish j one of the accused made the tally 780, and the other made it 781. They then counted ■the remaining one 3, and made the number 328. Witness himself counted them a few days later, and found that there were 328. } When they finished counting Taylor asked witness how the sheep tallied, and witness replied that he was some short. The accused were to start on the following morning, and ' the sheep remained in a small paddock near the yards over night. He took the 328 back to the homestead. Witness told the accused to recount the sheep before starting. Three days afterwards he counted the balance that he had taken home, and found that there were 328. He gave the accused two stragglers in. j Allowing for the two sheep given to accused j and two that were found dead, there were 18 missing. Witness reported his loss to the police. The accused had no authority to dispose of any on the road. When he received the sale note from Burnside it was for 779 only. They averaged 17s 6d. His sheep were ' branded 77 in red on the near side. He had seen two sheep outside the court that morning, which were his. A third he saw outside was one of the small ones he gave accused for the dogs. The five sheepskins shown to witness had his brand, and were off his sheep about a fortnight. After receiving the sale note witness saw Smith at Balclutha, who said that one sheep had died on the way. Cross-examined by Mr Soloiaon: The accused counted the sheep, and he kept tally, standing beside them. Witness could not see the number, aB the sheep passed; he only knew the number as they called them out. He took no steps to see that the number 780 j wag corrAot; he left ifc entirely to the ac-

cused. He did not understand that Smith was a servant of Taylor's. He paid Taylor only, who might have made his own arrangements with Smith. They were both in his employ. They were to charge him 10a a day and found. He made no arrangement with Smith. Cross-examined by Mr Macdonald : He told IBower (his man) to get Taylor, and if he cc/uld not get him, . to get Smith. As far as the counting was concerned, it was done solely by Smith and Taylor. It was Taylor who made the ntimber 780, and Smith 781. He thought he told them to count them again in the morning, but he was not sure. Some men were more expert at counting than others, but he would not say which of the accused was the best at it. He admitted that mistakes were frequently made. Witness did not think that if they were being counted in lens they would be likely to miss "a ten. It was possible. A great many people counted in tens. He had seen cases where sheep were counted half a dozen, times, when mistakes were made. In all, 18 sheep were missing. Ten had been accounted for, and he did not know where the other eight were. He did not know if the police had them. Re-examined: Even if the accused nad taken by mistake more sheep than they were authorised to, they had no authority to sell any sheep to M'Laren, of Milton, or Mrs M'Kegg, of Henley. It would b© very unusual for ten sheep to get knocked up on the way. Mathew M'Laren, butcher, said that he bought ten sheep from Taylor. Smith was standing outside the door when the deal took place. The sheep were in Coombe's yard. Taylor said he had ten sheep for sale. Witness could not say whether Smith heard or not. Smith was standing about the middle of the footpath. Witness paid 12s each for the sheep. He never at any time had any conversation with Smith about' the sheep. He paid the money' to Taylor by cheque. He supposed it was a mistake that the cheque was made payable to Smith. The cheque (produced) was made out by his mother, according to-his directioni The writing in the body of the cheque was, he supposed, his sister's, and it was signed by his mother. Witness handed it over to Taylor. Nothing that either of the accused said to him induced witness to make oxit the cheque to Smith. It ■was arranged that accused should put the sheep in a paddock. He Tveni to the paddock next day and found ten extra sheep there! They had a red brand, like 11 or 77. He did not know the brand until he was told. He afterwards handed over two of the sheep to Constables M'Rae and Hill. The Test were all killed, and he sent the skins to a fellmongery, except four, which he handed over to the police. Cross-examined by Mr M'Donald: The cheque was given to Taylor about a nple '- down the -roadv Smith must have seen him receive it. Taylor told witness that they were Miller's sheep, but he did not recognise tho name till he was told subsequently by the pdlice. Catherine M'Kegg, wife of Amos M'Kegg, hotelkeeper, Henley, said that Taylor called at the hotel on June 17. On the following morning accused said he had a sheep that was lame, and asked witness to buy it. Witness did so, and paid 15s for it. Her son took delivery. Witness cashed a cheque for Taylor, but could not tell if it was the one produced (M'Laren's). If she did cash it. it would have been sent to the Bank of New Zealand at Mosgiel. She did not see Smith. Cross-examined by Mr Solomon : She never had any dealings with. Smith. She was positive she never cashed a cheque for him in her life. Amos M'Kegg, eon of the last witness, said that on June 18 he went to a paddock to take delivery of a sheep from Taylor, which he did. Taylor threw another sheep over the fence, remarking that it would probably die. Cross-examined by Mr Solomon : He saw nothing of Smith in' connection with, the matter. Cross-examined by Mr M'Donald : It was quite usual for drovers to sell sheep . when knocked up. Re-examined : He tried to cure the skin, but the water being too hot the wool came off. Duncan Sinclair said that he saw accused witli a flock of sheep at Green Island about a month ago. Taylor asked him if ho wanted any dog feed. Accused replied that he could do with some. He then, bought a poor-con-ditioned sheep that Taylor said he did not require. Witness killed the sheep and gave the skin to Constable Hill. John Wilson, manager of the Burnside Freezing Works, said that accused brought a mob of sheep for the works on June 19. They delivered 779. Taylor counted them. Witness asked if that was correct, and Taylor said they started with 7£o, and that one knocked up on tho road. Cross-examined by Mr Solomon: Smith took no part in the counting. He was bringing up the tail end of the sheep, and did not ride away till after the counting. Ernest Walter Stronach, clerk in the Bank of New Zealand, gave evidence that they re--ceived the cheque already referred to from their Mosgiel branch on June 24-. John William Hodges, manager of the Bank of New Zealand at Mosgiel, said that he received the cheque from Amos M'Kegg on June 20. Evidence was also sriven by Constable M'Rae, Plain-clothes Constables Hill and Boddam. This closed the case for the prosecution. Mr Solomon, addressing the court on behalf of the accused Smith, submitted that there was absolutely no evidence against him at all — not a scintilla of evidence. There was not a pen scratch of evidence against him, and it would be simply monstrous and outrageous if he were committed for trial.

1 It was! not a question as to whether there was enough evidence, ther© was none at all. He ventured to say that if> tho bench committed for trial this -young man on the threshold of life and placed on him the gross -indignity' of having to defend this charge, it would be little short of a crime, and no man's liberty or reputation would bo safe. He asked their Worships to look at what the story was as far. as" Smith was concerned. The accused were charged with stealing 10 sheep. There was no doubt that 10 sheep were sold to M'Laren, but there "was nothing to show that these 10 sheep were part of the flock at all. He asked their Worships to remember that it j was not part of his (counsel's) business to ! inquire into Taylor's affairs. As so Taylor's guilt or otherwise, he (counsel) had nothing to do. It was perfectly clear that he sold 10 she^p -to M'Laren, but counsel neither knew nor cared whether he was justified in doing it or not. They knew that Snath and Taylor were in conjunction driving a flock of sheep : it was necessary that they should be together, and there was nothing suspicious or criminating in their being together. . The evidence showed that Miller employed Taylor to drive the sheep, and left it to him to engage anyone he liked to assist him. MvLaren's evidence showed that Smith end Taylor were present in Milton on proper j business. Taylor went into .M'Laren's shop [and Smith remained outside..' Taylor sold J M'Laren 10 sheep. These 10 sheep were in Coombe's yard. There- was no evidence that I these 10 sheep were part of the flock. If Taylor was an innocent man, they might be 10 sheep he arranged with Miller to sell for him.. It was shown that 780 sheep were tallied at the yards, and that 780 were delivered, with the exception of one which was ( accounted- for by the fact that it was J 1- sold to Mrs M'Kegg. From the moment 1 they left Miller's yard till they arrived at Burnside works there was not one suspicious act of the slightest degree against Smith. This man Taylor was Smith's employer. Sup- ! posing that Taylor had abstracted 10 sheep from the flock, there was no evidence that ■ Smith assisted the other man to commit an offence. Every witness, one after the other, said that Smith had nothing to do with it. Miller told them that he arranged the matter with Taylor. M'Laren told them that Smith was never in the shop, that Taylor went in alone, and inside the shop arranged the deal with him. M'Laren handed Taylor the cheque, and nothing else took place. If it was suspected- that the two men were thieves, the balance of the story disproved I it. Taylor got the cheque, and Went to ! M'Kegg's and cashed it and got the ' money. Taylor also sold another sheep, and Smith again had nothing, to do ( with it, and so, as they went along, I Taylor gave- a .sheep to. Sinclair. They. duly ' arrived at Buinside, delivered the sheep, andSmith rode' away. It was not for their Worships to decide whether either of the accused ' were guilty. .It was their duty to stand between the prisoner and the Crown, and just as much as it was their duty to commit a man for trial if there was some-evidence, bo it was . their duty, to stand* between the Crown and that- prisoner and- .protect him.' He- urged them to bear' in mind that it was a. dreadful , thing for a respectable young man to find I himself in that position. Just as much, if i it was shown that he had committed an j offence ho should be committed for" trial, bo' j was it necessary for them to protect him unj less 'there was a sufficiency of evidence. He J submitted that their Worships would be 1 wholly failing in their duty if they com1 mitted Smith for trial. Even if he had known , that the other man was acting dishonestly, I it was no offence for him to say nothing. The I sheep might have "been taken out of the j flock by Taylor — and there was no evidence i that they came out of the flock, — yet there was no evidence that Smith had any part in j the sale of .them, and the case proved that , Smith had not even got the money. The man stood absolutely innocent as far as the case was concerned: Counsel added that he ..made no attempt. -to cast any reflection on ' Taylor. Mr Macdonald did not address the court, . and the bench retired for 10 minutes to coni sider their decision. On returning to the | court Mr Wayne said: As far as Smith is concerned, we find that there is not sufficient evidence to send him up for trial"; as far as Taylor is concerned, we find that there is a case to answer. Taylor reserved his defence, and was committed for trial. Bail was fixed at £100 in his own recognisances and one surety of £100 j was required.