SUPREME COURT.

Otago Witness, 1 June 1910, Page 17

SUPREME COURT.

CRIMINAL SITTINGS Tuesday, May 24.

(Before his Honor Mr Justice Williams.)

CHARGE AGAINST A RAILWAY OFFICIAL. The hearing oi the charges against Albert Whitmore Cnirnside, railway porter, was resumed at' 10.30 a.m., accused being defended' by Mr Haailon, and Mr J. h. M. Fraser appearing for the Crown. Mr Hanlon, addressing the jury, pointed oud that the offences charged in the first and second indiotments were so serious as to be punishable by 14 years' imprisonment. What had the Crown proved? That a ring was lost, chat a ring similar to- the lost one was 'found in the possession of the accused's wife, and that some of the statements made by the accused were not true. That was not sufficient to justify a conviction. Everything ■ depended upon the identification of the ring, and he (Mr HanIon) submitted that.the proofs of identification were not such as would be accepted by the jury. , Mrs Henderson had sworn that the ring was hers, but when questioned this statement did not seem convincing. She said that the ring fitted her, and felt like hers, but it would fit other ladies as well. She also said that one of the diamonds had a larger crown than the other diamonds. That might be true. But his point was that Mrs Henderson did not describe, this peculiarity beforehand. What happened was that the police took Mrs Henderson a ring, and said, "Is that 'yours?" and she answered "Yes." That was not a proper way of getting, the ring identified. If the police had asked Mrs Henderson beforehand to describe any peculiarities about the ring, and then, producing the ring, had asked her the question, her identification would be of some value. Mr Coventry had said that he made a ring' of this sort and put the number 167 on it. That testimony, standing by itself, looked ugly. But Mt Coventry, when questioned further, said that he had put 167 on other rings. So far as his evidence went, then, all that it amounted to was that Dorhaps this was the stolen ring. But, equally possible, it might not be the ring. And there must be no perhapses about criminal prosecutions. The evidence as to identification was wholly insufficient to sustain this charge. But even supposing that this was Mrs Henderson's ring, the jury must remember this: that the detectives searched the accused's house, no doubt doing this very thoroughly, and never found another piece of the other jewellery that wa;s missing, nor could they ascertain that the accused had disposed of any of it. Not a scrap of the other jewellery had been found in.his possession. If accused stole this ring, would he be so foolish as to allow his wife to flaunt it about so that M'rs Henderson or her friends oould see it? The idea was preposterous. There was nothing, either, to showthat the accused was the first man to enter the-car. It was said that he had told lies, but the whole of the circumstances were consistent with his having found the ring and given it to his wife, and, if so, it accounted for all the untruths he had told, and drove the jury back to the question of identification. If the jury were absolutely satisfied about line .'identification, they must convict on one or other of the counts. But they must be satisfied, not that this ring might be, but that it actually wa- Mrs Henderson's. He (Mr Hanlon) - sutenttFid that it would be unsafe to say that the ring was properly identified, and therefore that accused was entitled to an acquittal. The jury retired at 11.25. and returned to the court at 12.5 to ask if it was necessary to give a verdict on every count. His Honor: If you are satisfied as to the identity of the ring, the circumstances show that the verdict should be against accused on some one of the counts. If you a.re not satisfied as to the identity of the ring, it is not absolutely necessary to do so._ You can find a general verdict finding him guilty. It would be open for you to say generally " We find prisoner jruilty," \r ; '- v <-" t specifying on each count. That is ■u want to know?

Foreman: Yes. We are in doubt abour, the fourth count —receiving it knowing it to have been stolen. His Honor: Well, you need not find a verdicc on that. If he stole it he did not receive it. You find a verdict on the other counts.

The jury retired, and returned at 12.15 with a verdict of " Guilty." Accused, who gave his age ae 25 years, was, on the court resuming at 2 p.m., brought before his Honor for sentence. The Crown Prosecutor said prisoner had been before the court on November 26, 1907, on a charge of injuring a dwellinghouse and intimidating the inmates, and was discharged. Hie character was then reported to be not good. He was fond of 'Jlrink. However, there seemed to have been nothing against him during the time be had been at Port Chalmers since 1908.

The diamond ring was the only part of the stolen property recovered. His Honor: He made no statement about where the other rings were? The Crown Prosecutor: He declined to make any statement as to where they were. His Honor: The sentence of the court is that you be imprisoned for two years, and kept to hard labour. FOBGEBY AND FALSE PRETENCES. Frank Mervyn Kemshed, who was brought up for sentence the previous day on a charge of forgery and false pretences, and ordered to stand down pending the production of his former employer, was again placed in the dock. Mr W. Downie Stewart called Mr W. A. Scotn, cycle manufacturer, who said that he employed Kemshed for four years up to December of 1908, and found him not difficult to control. Mr Stewart said that Mr Cumming, agent for the Patients and Prisoners' Aid Socety, was anxious to get charge of the boy, and if accused were ordered to come up for sentence when called upon, restitution could be made, and Mr Cumming would see that proper employment was found. Mr Fraser said that nothing was preknown against the accused. Obviously, it was improper to employ a lad like this at such a wage and then send him round the country. Mr Fraser submitted that probation, which meant more supervision, would be better than the course suggested by Mr Stewart. His Honor: If he com'es within the Probation Act. it would be better. Probably it is within the act. He has pleaded guilty to two offences. In respect to l the first, he would be entitled-to probation, and in respect to the second he would not, but no sentence need be passed. His Honor then admitted accused to probation for 12 months on condition of £lO being paid in instalments of 5e per week to recoup the loss and to cover the costs of the prosecution. FALSE PRETENCES. Dibb Idour. a Syrian, was charged with having, about April 14, obtained by false pretences from Samuel Alexander Lyttle, a cheque on the Bank of New Zealand, Outram, for £8 10s. There was a second count for theft of the money. Mr D. D. Macdonald appeared for accused, who pleaded "Not guilty." The Crown Prosecutor said accused was charged with obtaining £8 10s by false pretences, and another count charged him with the larceny of the money. The facts were very simple- Accused was an Assyrian labourer and hawker, and lived at No. 7 Mafeking terrace, Glasgow street, Dunedin. On the 12th April he went to Outram, to the hotelkeeper there (Mr Samuel Alexander Lyttle), and told him he could get him some cheap cigarettes and cigars, and quoted a certain price. He explained that he could get them cheap* as he had a friend working in the Customs, and he could get a cheap line from him. His friend, he said, had served several hotels, t-nd that the duty was paid on the goods. Later, he got an order for goods to the extent of the sum mentioned. Mr Lyttle asked accused whom he was selling for, and accused wrote out his own name — D. Idour, No. 7 Mafeking terrace. On being asked what his own name was, he said it was Adough. He said he was selling his goods for his friend, and was getting very little for it. Next morning he rung up Mr Lyttle from Dunedin, and told h'm he could get the goods. He said he would lake the things out with him, but his friend wanted cash before delivery. Mr Lyttle said he would post a cheque to accused's friend, to the address given, and did so. He never saw anything more of accused who subsequentlv cashed the cheque at the D.I.C. The whole thing was a trick on the part of accused to get possession of Lyttle's money. Evidence was given by Samuel Alexander Lyttle, and Chief Detective Herbert, the latter sbatine that accused had said, " It serves them right to be taken down. They should not tempt a man. _ They thought they w .re getting a bargain." Mr Macdonald said the Crown Prosecutor had undertaken to satisfy the jury beyond all reasonable doubt that accused was guilty of the offence, and if he failed to do so it was the jury's duty to acquit accused. There was considerable difficulty with to. these cases of false pretences, and he quoted opinions as to some cases being punishable criminally and some by civil means. He mentioned this because it did not always follow that a man should be punished criminally. People sometimes invoked the criminal side of the law, and he put it to the jury that this was one of the cases where a man should have gone to the civil side of the law, and not to the criminal side at all. The Crown must prove that this man had parted with hie money on the strength of a false pretence, and the false pretence must be a past or present actual fact. The Crown had to satisfy the jury that accused got the money by the misrepresentation of the

real fact. The mere fact of the man saying, " I will bring you these goods" was not sufficient. Mr Lyttle said he had relied entirely upon the strength of accused's promise that he would bring the goods, and if the Jury cam© to the conclusion that he gave the order, and parted with his money on the strength of that promise, then it was clear that the criminal law did not touch this case at ailthat the man's remedy was by the civil side of the law. It was a promissory statement, and did- not fall within the criminal law, and the remedy was by civil means. Accused was therefore not guilty of criminal, action at all. The Crown had to prove beyond all reasonable doubt that the man got the money as a result of a pretence. Mr Lyttle had said in the box he had relied upon the man's promise to bring the goods; on nothing else at all, but there was nothing to show whether accused had a friend in the Customs. He might have had a friend who, owing to some hitch, was unable to carry his promise out. He (Mr Macdonald) contended that accused was entitled to an acquittal. His Honor, in summing up, said if a man obtained money by the mere promise of something in the future he was not obtaining money by false pretences, though lie did not keep his promise. There might, however, be a case, and this was one of them, where there was representation of fact, and there was a promise to do something in the future. In such a case as that, if the money was obtained from a person, the nerson who obtained it was guilty of obtaining it by false pretences, if the person parting with the money relied wholly, or in part, on the misrepresentation of the fact. The jury had to consider what the representations of fact were, and if they were relied upon to any extent by Mr Lyttle. The jury retired at 12.35, and after an absence of eight minutes returned with a verdict of guilty of false pretences. Dibb Idour was further charged with obtaining £6 14s from Martin Wills by false pretences. Accused pleadel guilty, and expressed his contrition. His character had been very black a few years back, but there was such a thing as reformation. There had been no conviction against him for the last five or six years, though before that his record was bad. He was in the present case " innocent in conscience, though he might not be in the eyes of the law." The Crown Prosecutor said accused had borne a very bad character. ' The man lived by impudent imiposture. He had been convicted in 1894 at Inveroargill for forgery, in 1897 at Wellington for false pretences and theft, in 1901 at Dunedin for breach of the peace, and in 1905 for false pretences. His Honor, in passing sentence, said: I shall take into consideration the fact that you have not been before the court within the past five years. I would warn you. however, that if, after you come out of gaol this time, you commit another offence of the same kind, you will be liable to be treated as an habitual criminal and kept in gaol for an indefinite term. The sentence of the court is that you be imprisoned for 12 months, with hard labour, the sentences on each indictment to be concurrent. This completed the criminal sittings. CIVIL SITTING. (Before his Honor and a jury of four.) CARMICHAEL V. fi OP MACE. The plaintiff, Agnes Carmichael (of Clinton), sued the defendant, John Gormack (of Clinton), threshing-mill owner, for £2OO damages. Mr John MacGregor appeared for plaintiff, a.nd Mr A. C. Hanlon for defendant. The statement of claim set out that plaintiff was the owner of a, dwelling-house at Clinton and defendant the owner of a traction engine, which he was in the habit of driving along the streets of the township. On December 31 last the engine, while oassing the house, emitted sparks from the funnel, and some of these, falling on the roof and other parts of plaintiff's house, set it on fire, and the house and contents were entirely destroyed. Such emission of sparks and consequent destruction of plaintiff's- house and contents were caused by defendant's negligence in using insufficient appliances for arresting sparks, and in the use of unsuitable fuel. Plaintiff prayed judgment for £2OO damages. An amended statement of claim contained some slight addition as to tho serious inconvenience plaintiff had been put to. The statement of defence was in the nature of a complete denial, the last paragraph stating that defendant . had never been guilty of any negligence in relation to the engine, nor the emission of sparks therefrom, and had constantly used sufficient appliances for arresting sparks and suitable fuel.

Mr MacGregor, in opening the case, said plaintiff was a widow, and the destruction of her house was caused by a spark from Mr Gormack's engine. It would be proved

that about half-past 8 o'clock on the morning of December 31 Mr Gormack's engine passed along the road, and, though there was then no sign of ive about the house, a few minutes later it was discovered to be on fire. The fire commenced at that part of the where there was no fire lighted. It commenced a very short distance from the eaves of the house, and 6ft or 7ft from the ground. No effective device had yet been invented which would entirely prevent sparks flying from the funnel of an engine. On this particular morning the engine was going at a rapid speed, the weather was dry, and there was a high wind blowing in such a direction that a spark from the funnel would be carried in the direction of the house. Defendant had had an opportunity of affording relief to the plaintiff, but had not taken advantage of it. This engine had an appliance known as ji spark-arrester, but these things were quickly destroyed by the action of the sulphur in the coal used, and the evidence would show that part of the spark-catcher on defendant's engine was eaten away. But even if it were in perfect order it could not have prevented sparks coming from the funnel. Evidence was giv~y by James Carmichael, Thomas Gouidbunn. Ellen Gouldbunn, Mark Martin, John M'Gregor, and Agnes Carmichael.

Before the court rose Mr Hanlon said there was the point as to negligence. His Honor, addressing Mr MacGaegor, asked if he suggested that there was evidence of negligence. If it could be shown that defendant was liable on the facts, apart from negligence that would do. He did not think there was any evidence of negligence. The only evidence of that was given by the boy Carmichael, who had said there was a hole in the spark-arrester. But there was evidence that defendant had u<;ed £he best means possible on the engine. Mr MacGregor had said that if the engine sot the place on fin the owner of the engine was liable. The court adjourned at 5 p.m., to sit again next morning at 10.30. CIVIL SITTING. Wednesday, Mat 25. (Before His Honor Mr Justice Williams and a jury of four.) CARMICHAEL V. GORMACK. This case, in which Agnes Carmichael sued John Gormack for £2OO damages for the burning of her house at Clinton through a spark from defendant's traction engine, was resumed at 10.30 a.m. Mr J. MacGregor appeared for plaintiff and Mr A. C. Hanlon for defendant Mr Hanlon, in opening the case for the defence, said the claim was in respect of damage which plaintiff alleged was caused through a spark from defendant's engine setting fire to her house. The onus of proving that lay upon plaintiff. The evidence by no means established it, and even on the plaintiff's case the defendant was entitled to succeed. He would shortly outline the evidence that would be called for the defence, which would place the matter beyond any doubt. Defendant would say that his engine was equipped with the ordinary spark arrester, and in addition to that there was a gauze plate in the smoke box across the boiler tubes in such a way as to prevent sparks going into the funnel. It would also be shown that on the day in question there was only 601 b pressure in the boiler, so that the draught was not such as would cause sparks to fly, and further, that defendant was using Newcastle coal, which was the best possible fuel for not sparking. Other expert witnesses would be _ called who would show that an engine equipped as this one was, used as this one was, and drawing a light load, would not emit any sparks, and. that being so, it was exceedingly vnlikely that any spark from this engine would set fire to plaintiff's house, and that would negative the theory—because it was a theory—which plaintiff advanced that it was a spark from the engine that set fire to her place. Evidence was given for the defence by John Gormack, Robert Davidson, .James Gormack, Annie . Divers. William John Owen, and Alexander Balloch. Mr Hanlon, addressing the jury, said that if persons could insure, as in the present instance, and then get damage© because their house took fire when a traction engine was passing, they would be doing pretty well. The onus was on the plaintiff to • prove that her house was burned down through the agency of the traction engine, and by no other means, and counsel submitted that not a fraction of evidence pointed to the house being burned down through defendant's engine. Mr MacGregor urged that the fact that Mrs Carmichael had said to defendant, "I have to thank you for burning down my house," and that defendant had replied, "Oh, but-you are insured," was sufficient to show that defendant was convinced that a spark escaping from ids engine had set fire to the house. The probabilities were entirely in favour of the 'fire being caused

by a spark from the engine. On two previous occasions the house had been, found to be on fire immediately after the traction engine had passed, and a fire in the grass, a few chains away, had also occurred. His JHonor reviewed the evidence, and said the fact of plaintiff being insured was immaterial, as, if the insurance had no* been paid it would be paid less any damages awarded, and if it had been paid it was a question whether the insurance company would not be entitled to recover according to what damages were awarded. The jury, after three-quarters of an hour's deliberation, found that the house was destroyed by fire by a spark from defendant's traction engine, and awarded' damages Irr respect to the house £75, furniture £SO, and other damage £ls—total £l4O. Judgment was entered up in favou> ■ of plaintiff for this amount, with costs aa per scale. PETERSON V. COWAN. The plaintiff, John Peterson, as executor of the will of Ann Miller, deceased, sought to recover from defendant, William Cowan, of Sandymount, £144, rent in respert of sections 14 and 15, block VII, Ota«o Peninsula, used and occupied bv defendant from November 12, 1901. till October 15, 1908. The area contained 18 acres, and the annual value was £24, and defendant had paid no rent in respect thereof. An amended statement of claim set forth that about the 21st August, 1897, defendant wrongfully took possession of the land and continued to occupy and use the same till the 15th October, 1908, whereby plaintiff du.ring all that time lost and was deprived of the issues and profits, and the beneficial, use and'occupation of the land, and was prevented from letting the same. The defence set up was in the nature of a general denial, and that if it were proved that the defendant, in fact, ever occupied any part of the land, he \ so occupied it under an agreement with on 9 John Charles Miller. As a separate defence, defendant said the claim was barred by the' Statute of Limitations. Mr Scantleburv appeared for plaintiff, and Mr W, C. MacGregor and Mr B.S. Irwin for defendant. ' Mr Seantlebury said the first claim was for the use and occupation of the land, and there was an alternative claim - for rent at £24 a 3'ear for a number of years. There would be no dispute as to defendant having occupied the land in question. Defendant's contention was that he had held the land under a lease granted by John Charles Miller, the husband of Ann Miller, whose executor plaintiff was. Evidence was given by John MacGregor, William Cowan, John Carl Miller, and Andrew Denmark Miller. Mr MacGregor urged that plaintiff must be nonsuited, because the document under which Cowan held the land as tenant had not been produced. After some argument, Mr Scantleburv said what his side relied upon was damages for trespass. - Mr MacGregor: Then to-morrow 1 morning we have to meet a claim for trespass. The others have been.abandoned. The court rose at 5.30 p.m., to sit again next morning at 10.30. CIVIL SITTINGS. Thursday, May 26. (Before his Honor Mr Justice Williams.) PETERSON V. COWAN. This case, in which John Peterson, as executor of the will of Ann Miller (deceased), sought to recover from defendant (William Cowan, of Sa.ndymount) £144, rent in respect of sections 14 and 15, block VII, Otago Peninsula, used and occupied- by defendant from November 12. 1901. till October 15, 1908, was continued from the previous day, most of the morning being 1 devoted to legal argument and the calling of further evidence His Honor reserved his decision. IN DIVORCE. SILLETT V. SILLETT. Many Sillett petitioned for .a dissolution of her marriage with James Billett, on the ground of habitual drunkenness and failure to support. Mr Irwin, who appeared for petitioner, said the parties were married on August 11, 1904, at Dunedin. Respondent was a hatmaker, but for a number of years he had not followed l that occupation, because he could not retain employment on account of his intemperate habits. For some yeara he had been in the habit of going periodically to the country and taking a situation as cook at shearing sheds, sawmills, and such places, and came to town and spent his money He would be described by a witness who had known him well as "a waster." It was only when his money was done that he would go to work, and his work had been just sufficient possibly to keep him from being- charged with, vagrancy. He had given his wife nothing tor ov«r four years. Since his marriage ne had done nothing for his wife, and waa a confirmed drunkard. He. had been fcwioa , convicted of drunkenness in .Dunedin, and

.had admitted other charges of drunkenness made against him at Invercargill. Petitioner, in her evidence, said that many a time respondent had made a bonfire of her clothes. Evidence was also given by Annie Brown and Daniel Berry (bailiff). A decree nisi was granted, to become absolute after three months; costs on the lowest scale. REID V. HEID. Mary Reid petitioned for a dissolution of her marriage with Charles Reid, on the ground of misconduct. Mr Irwin appeared for petitioner, and said the parties married on November 1, 1901, at the office of the registrar. Respondent was a bootmaker, and was employed for many years, and was ' still employed, at M'Kinlay's boot factory. Some time after the marriage respondent went to Australia, and during that time did not maintain his wife. He came back to New Zealand, and commenced keeping company with a young woman, whom he got into trouble, and through wAose agency he was arrested, as he threatened to leave the Dominion without making provision for the child yet to be born. Evidence was given by petitioner, the young woman with whom respondent had been keeping company (who stated that re-' epondent represented himself to be a single man), James Miller, and Annie Taylor. A decree nisi was granted, to become absolute after three months; costs on the Jowebt scale. m The court then adjourned till next morning at 10.30. IN CHAMBERS. Probates were granted in the foUowinfc estates:— Louisa Pomeroy (deceased), Jane Osmond Mary Ann Howlison, '/Was M Donald. > Letters of administration were granted the estate of Alfred Roberts. iuller and another v. King (Mr Moore.)— Motion for removal 'of action to the Supreme Court.—Accordingly. In re James Kent Robertson (Mr Arkle). ■"■Motion for remuneration to executors.— Kafarrod to registrar.