SUPREME COURT.

Otago Witness, Issue 2649, 21 December 1904, Page 35

SUPREME COURT.

CRIMINAL SITTING. Monday, December 19.

(Before his Honor Mr Justice Williams.) BREA.KINO AND ENTERING.

Charles Henry Cox, who had pleaded " Guilty " in the lower court to three charges of breaking and entering and theft" of jewellery was brought up for sentence. Prisoner, interrogated, gave his age as 26 years, and said he had already served a long sentenoe in gaol, and would therefore ask the court to be as lenient as possible. Mr L. E. Williams, who appeared for the Crown in the absence of Mr Fraser, said that Cox was convicted at Auckland in August, 1898, for robbery with violence, and was sentenced to seven years' imprisonment with hard labour. In May of this year, also in Auckland, he was sentenced to a month's imprisonment for consorting with thieves. The police described his general character as very bad. He arrived in Dunedin from Auckland on November 22 last after stopping at Wellington and Christchurch, and the three offences as to which lie had pleaded "GuiHy" were committed within a few days of that date. He was arrested after being at large in Dunedin for a fortnight. The total amount of the thefts Was £132 17s 6d.

His Honor said that as the prisoner was a member of the criminal class, and had already served a long sentence, it would do no good to pass Si short sentence on this occasion. He would be sentenced to a term e-f four years' imprisonment, with hard labour. Me Williams applied for an order for the restitution to the owners of the stolen money and golcP found in Cox's possession, and his Honcr' made ,an order that such should be divided among the three owners of the stolen property, proportionately to their loss. '

EMBEZZLEMENT.

John Jardine, who had in the lower court pleaded " G-uilty " to charges of fraudulently converting to his own use various sums of money received from the Amalgamated Society of Railway Servants' Industrial Association, on terms requiring him to account for the same to the Otago branch of the Amalgamated Society of Railway Servants' Industrial Union of Workmen, was brought up for sentence. Mr Stephens appeared for" the prisoner (who gave his age as 50 years) and produced evidence as 'to accused's character, including a letter from the general manager of the Government railways certifying that accused had been employed in the Railway Department since May 29, 1882, as porter, bridgeman, and signalman, and during the whole of that time had borne an excellent character, and had performed his duties in a highly satisfactory manner. On January 7, ISO 3, he was granted a gratuity of £1 by the department for his prompt action in averting a collision. Proceeding, Mr Stephens said accused was lame as a result of an accident in the department's service in 1682. As to the circumstances of accused's offence, if ~he officials of the department had wished to select a /method by which they could put temptation in accused's way, they could hardly have bsen mor\2 successful. Accused was supposed to be secretary to thi,s society, his duties being simply to hand moneys to the treasurer, but the treasurer looked on his office as a sinecure and took do active duties. ' There were supposed to be quarterly audits, accused sending statements to the head, "office quarterly. Accused asserted that the statements contained the whole of his receipts, and the simple method by which he cc-noealed his defalcations was to insert in the statements as the amount to tho credit of the society in the bank a greater* sum jihan was actually there. Had the bank balance sheet been called for, tho whole thing would "have been stopped at the very beginnig. The society claimed that there was a shortage di £350, but accused still asserted that his balance sheets were complete so far as receipts were concerned. Taking the bank balances, his deficiency in 1904 was actually less than in 1888. Of course it had to be admitted that these funds were used, but he would suggest that accused was for some years simply in a state of muddle.

His Honor : To make a false statement about his balance is not to be in a muddle.

Mr Stephens: I admit that is against him, but if the auditors in 3898 hnd done their duty the whole thing would have been stopped there and then.

His Honor: That is very likely, but there were continuous eubsteactions from 1898.

■Mr Stephens, speaking of aocused's position, B«i3 h« had a wife and three children, and, as was shown on the depositions, he admitted his offence, and had given the 'society every assistance in placing its accounts as far as possible in a correct position. It would be seen that Mir Edwards, the secretary of the head office, acknowledged that acoused had done his best to make up the deficiency. Mr Williams stated on behalf of the Crown that there was nothing known against accused, and the police report was, good. Accused's general character was good. He arrived in the colony from Scotland in 1878, and no previous convictions were recorded against him. His Honor inquired the total' amount of the deficiency.

Mr Stephens said accused appeared to he short to the extent of £350, but he said his balances showed the whole of his receipts, a-ncß if that was true the balance sheets did not show the whole of his expenditure. Oil his own showing accused had abstracted £150.

His Honor : He has admitted there has been s, continuous shortage, and that money had been taken throughout a period in small slims.

Mr Stephens said it appeared to have fluctuated to some extent consistent with accused's endeavour to reduce the amount. In March last, comparing the real credit balance in the bank with the amount said to be there,

" accused was JE1791 short, as againeb which he had £50 in cash which he paid over. His Honor : How does the society make cmt he is £350 short ? Mfl Stephens: They have got the amount he has received, snd he can't show expenditure to make that up. His Honor: I don't think from the facts before me that it comes within the Probation Act. A person is not entitled to probation if his offence indicates in**' the opinion of the court an established criminal intention on his part. I think that is established here. It is not an ordinary case of embezzlement of a single or of one or two sums within a short period. The transactions extend over six years, and in order to facilitate and conceal his thefts, four times a year during theSe six years accused has made false statements in writing with respect to his accounts. That seems to me to indicate an established criminal intention on his part in connection with the offence with which he is charged. The fact that accused has had a good character is really hardly an element in a case of the present kind, because if he had not had a good character he would not have been placed in the position of trust in which he was placed. A person who is placed in a position of trust and embezzles really makes usa of his good character to facilitate his committing a. crime. I don't think it is;a case! for probation, but at the same tims I can quite see that accused was exposed to great temptation, and I don't want to condemn the auditors without hearing them, but from what has come out in court and from what cne can see, if reasonable prc-autions had been taken he would have been at once found out, and the matter would not have gone on so long, and tile society would not have lost such a large amount of money. The fact that the society lost such a large amount of money seems, as far as I can see from what is before me. the result of imperfect supervision over the accused. The object of all punishments is to prevent orime. In the public interest it is really necessary that a person who commits an offence of this kind should be punished, and he should not expect to obtain probation. To allow probation in a case like this would be simply to encourage. A man would say, '" I will be found out, and if I am I shall not go ' to gaol, so I will help myself to the property of those who have entrusted me with the care of it." It is not a case, looking at all the circumstances, for a heavy sentence, but there should be a sentence sufficient to mark the gravity of the offence. The sentence of the court ia that accused will be imprisoned for nine months, with hard 1 labour.