SUPREME COURT.

Poverty Bay Herald, Volume XXXV, Issue 11216, 3 March 1908, Page 5

SUPREME COURT.

TO-DAY'S PROCEEDINGS

(Before Mr Justice Cliapman.) Proceedings were resumed at 10 a.m. SENTENCE. Ira Toto, a young Native resident of Tolaga Bay, appeared for sentence upon a charge of theft of a cheque at Tolaga Bay, t 0 which he had pleaded guilty m the lower Court.

Mr Rees, who appeared for the accused, said that prisoner had pleaded- guilty. He had at first denied the theft, but sub. sequently admitted it. Counsel asked that accused he admitted to probation. The prisoner knew what he was doing, and had 6imply put his head iv a lion's mouth by placing the money from the cashed cheque m the post office. Accus. Ed came of a good Native family. The Crown Prosecutor said there was nothing known against accused. His Honor 6aid it was very difficult to know what to do with these young fellows. He thought this was a case m which the provisions ol the Probation Act . might properly be applied. One had to exercise a. great amount of caution m applying it to such crimes as this. The prisoner, however, had borne a good character, and had acted stupidly m yielding to temptation when it came suddenly into his way. Under the circumstances he thought it was a case for probation.

, Addressing the prisoner, His Honor said that he had taken his case into considewttion, and because of his previous good character and that he was living with .his parents at Tolaga Bay, who would doubtless undertake to look after him. Hiß would only admit accused to Srobatfon on his promising to lead an bnest life m future. This was by way of giving him a chance. He was to understand tliat if hb was to offend again he would not oet such a chance again. Probation would be a long one. Accused was admitted to probation for two years, on condition that he paid £5 towards the cost of prosecution.

ALLEGED THEFT AT THE RACES. Daisy Simmelhag and ;Minnie McNeil, alias' 5 two youhg women, strangersto Gisbdriie, who were apprehended during; the^recerit.-lbcal race meeting, were charged with ; three counts of theft, . on February 7 last, at the Park racecourse, theft from the person of Samuel Charles Goldsmith of a • rolled gold watch, ah order for £9 on James Clegg ( a bookmaker), and theft of the 6um mentioried.

Mr W. L. Rees. appeared for the accused, who pleaded not guilty. -The following jury were empanelled: Messrs J. W. Bull, A. Martin, R. Cole : brook. S. J. Ensor, L. Redward, K. Campbell, A. G. Webb, J. Maynard, S. Hastie, G. H> Renouf, A. J. Poole, and R. Barker. Mr R. Colebrook was chosen foreman.

The Crown Prosecutor (Mr J. W. Nolan), iri detailing the case and the evidence he proposed calling, said that they were i not saying which of the two accused took the ticket, but His Honor Would tell them that this was of no consequence if they, were both acting m concert; Be called- i

Samuel Charles Goldsmith, station manager at Paparatu, who stated" he was at the races at the Park on February 7th last. He made a wager with a bookmaker named -degg, who gave him £6 to £3 on Cheddite, receiving a ticket entitling him to £ . if the horse won.

By His Honor: He (witness) put up his £3. . „; , v Continuing, witness said he then met a •friend, Dougald ; McKenzie, ;who invited him to have some (refreshment., which were "m his buggy. Witness' had not seen accused before, and he -did not know what they were doing, near the buggy. While he was having' refreshments witness got into conversation with accused. McKenzie asked him if he ! had a bet on, and he replied he ' had, pulling out a race-card and the: papers ;,in his pocket to see the name of the horsb. Just as he sorting but the papers one of the accused, he thought. Simmelhag, snatched! the papers from his hand. Witness asked for his papers back, and accused sorted them over, giving them all back but the ticket, jie had received from degg. Witness iisked for his, ticket, but accused said she would take care of it. He then went over to the grandstand, and seeing the numbers up, noticed the horse he had backed had won. Witness returned to the buggy to see if he could find accused. They were not there, so ,he went over to the bookmakers' stand, where he found 'both accused m front of the bookmaker Clegg. They had' drawn the money. Witness asked the accused for the money, but one of them, he did not know which, said, "I have not seen you before; I do' not know you; you are mad; why do you speak to us about money?" Accused then walked away, and accused followed them into the saddling, paddock. As, they walked across the lawn one .went on ahead, and the other- — he could not say which — stayed behind to speak to witness and draw his attention. Witness told her that if she would give him £5 she could have the rest of the money. The accused said her friend m front had it. From the saddling paddock the accused went back across the lawn to the place where the buggies were kept. Witness again followed them to. see if he could make some arrangements with them. When they saw him coming one of them stopped behind to speak to him, and lie again asked for £5. She replied that hei" friend m front had the money. By this time the other accused had got seated on a two-wheeler about a chain away. Pulling out his watch, which Was unattached to a chain, to see the time, accused snatched the watch out of his hand, remarking that it was about time he gave back the . watch she had hnt him yesterday, She walked away to the trap where she got m, and was dr »<-n away by some person. It was their just after the fourth race. He reported the matter to the police.'. . . By Mr-'ReeVr He' was certain he lad not haiided ..the tioket to ono of tht accused. McKensiie's buggy was stybii or eight yards from the gate.- " Mr Rees : By the way, you nad a good many whiskies' tliat morning? Witness: No,* sir, I had not ; two or three. Continuing," witiiess said he did net go with afceufeed to the bookmakers. They were there when- he got there. He asked Clegg if. he had paid them, and was told he had. He did not know if it was eoYrect that Constable McPherson was standing alongside him (witness) when the two accused drove off. He heard the constable m the Lower Court say he was, arid that .he did not see any watch snatching. When the latter incident took place a man m plain clothes— he did-' not know his name— was close -by, and witness axmiarked that it Wai "hot" business, and the latter replied they were only having a joke. Constable McPherson went with him to make inquiries, 'hut he co\ild not say if the bfficer was present all the time till the accused left the course. McKenzie saw them, but he did not think he heard what was said. He was certain he did not see - Clegg hand thc accused the money.; Ke-examined by Mr Nolan : He did not see v constable m uniform at all.

vDugald McKenzie, sheepfarmer, Ormond, • deposed that he saw the accused for the first time near his trap when walking over towards the vehicle with Goldsmith after the third race, to liave some refreshments. No one else but they, two had any refreshments. They were talking about the next race, the, fourth J and he (witness) asked Goldsmith which horse he had backed. The latter drew out some papers from his pocket, including' a ticket, marked "Cheddite, £9," which he saw. They were standing facing the accused, who were about a yard behind, when one of them,' Simmelhag,- reached over and took the- ticket out of Goldsmith's hand.

By His Honor: Before this they had not spoken a word to the accused. Continuing, witness said he left immediately to see the race run, and Goldsmith remained with accused. He saw nothing more.

By Mr Rees : He and Goldsmith were about five or six yards from the gate. Goldsmith did not hand the papers to one of the accused. He thought the gatekeeper would be able to, see 'what happened

By His Honour They were standing sideways on to the gate-keeper.

By Mr Rees : On the papers ibeing taken by accused he made no remark, thinking they were Goldsmith's friends. It was not his business and he wanted to get away to see the race. James Clegg, bookmaker, residing at Auckland, stated that he did business with Goldsmith, when he gave him £6 to £3 on Cheddite. The horse won. He gave Goldsmith- a ticket for £9, and would pay the money to anyone who presented it. The ticket was paid about 20 minutes after the race. His clerk drew his attention to the fact that there was, m the language of the turf, "a sleeper for £9." It was the last item paid on that race. Some female presented it. He remembered the bet distinctly, because Goldsmith had £3 m his hand, and at first proposed putting £2 on, and his friend urged him to put the other £1 on, which he did. ' Just after his clerk made the remark mentioned he (witness) saw two women coming along with Goldsmith. , By His Honor: Tlie two females were standing m front of him, and Goldsmith at their side. He saw them' coming eight or nine yards off, and Goldsmith was with them.

By Mr Rees : Goldsmith saw him give the irioney to ithe Woman, and made no objection. There was; nothing to lead him to think the' woman had got the ticket dishonestly.

. By His Honor: Goldsmith did not m any subsequent conversation make' any reference to this i bet.

Constable McPherson deposed that he was at the racecourse m plain clothes, when : Goldsmith complained two young women had stolen his ticket, value £9, and he accompanied Goldsiriith to find them. Goldsmith hurried off after two young women, and one of them put heir arm round Goldsmith's Waist, and they, proceeded along the field. The other fe. male walked on. Catching 'up to the two accused , hel demanded Avhpt they had done with Goldsmith's moriey. One of them replied Goldsmith was" mad or drunk. One of the accused then' invited him to have a whisky at a vehicle, and he refused. One of the females 'went; off m the direction of a young : man ' near another trap, and the other asked him to harness up a trap, which he declined to do. He then went over;, tb' who was standing by the -other accused, and was near by when thb two accused and a young man drove away. Goldsmith and he then ..went towards the bookies, and a "few -minutes' afterwards complained they/ had stolen hisv watch. Goldsmith was slightly under the influence of liquor, but knew quite well what he was talking about. It was then about 4 o'clock, some time before the races were finished.

Ry Mr Rees : He was with Goldsmith from the time he reported his loss till the time they drove' away. Be did, not see the accused, Who ; was talking to Goldsmith, snatch the watch; out of his hands, but she could have done it, as he was watching the other accused.; He did not take them into custody, as the accused said they had not got the money, but , reported it to Detective Maddern. He thought Goldsmith' was intimate with the accused from the way he went up the field with them".

Detective Maddern stated that just before the fifth race he saw the two accused leaving the bookmakers' stand,, walking towards, the grandstand with Goldsmith close behind them. Simmelhag, who fell or slipped down twice, on, reaching the fence turned her haok to it, lifted up her dress and put a handful of notes down her right stocking. Then they walked to the back of theracecohrse behind the stand, Goldsmith still following, towards the vehicle stand. After a while they got into a trap and drove towards town. He saw the accused again at 9 o'clock that evening, and informing them of the charge of theft arrested them. On the way to the station accused O'Neill said her sister Daisy had the watch, and she had told her that the man had given it t f > her. At the station accused Simmelhag said this was not true. On being searched by a female searcher 10s or lis was found on one and Is on the other. He overheard the affair on the course,} and hunted up Goldsmith, who pointed out Clegg as the mail he liad the bet with, ■ and complained jo f the loss of a ticket for £9 and a Tolled gold watch.

By Mr Rees: He knew, accused, but not Goldsmith, and seeing the latter -m their company and from the remarks of people on the lawn he watched them. Some time after the accused left the course a man overheard Goldsmith telling the Hon. J. Gii-roll how he had been taken down, and this person slipped over and informed him (witness). This concluded the case lor the prosecution.

Counsel for accused addressing the jury said that he proposed calling one witness only. He would not call * accused as the evidence that might be 'brought out m cross-examination might bo intended to damage the accused, though their evidence 'be true. He would call the gatekeeper, whose evidence would, he was sure, unravel, the whole case.

Nathaniel Pilcher, nightwatchman at the Taruheru Freezing Works, deposed that he had the right over the horses at the Park meeting. He first saw accused enter the enclosure m a vehicle with a young man, and at their request took charge of their horse, the parties proceeding to the lawn. Half an hour later the accused returned and asked for their horse to be harnessed up, which he did. The young man turned up and they drove away. An hour elapsed when they returned- Goldsmith arid one or two other young men ''were at this time taking refreshments at McKenzie's buggy, and the two accused joined their company. Witness was within two yards. He heard Goldsmith say he was m luck's way, that he had struck a "div.," pulling out a ticket with some other papers. One of the accused 'remarked, "Give mc your ticket, and I will go and gather your money." 'Hie ticket, was handed over to, her by Goldsmith. He would not like to say Goldsmith was intoxicated, but he was much excited. Just at that time some more horsey arrived,, and; ho had to attend to them. About 'a-- quarter of iin hour later Goldsmith enquired if he had seen the two accused, remarking they had his ticket and he was hunting them up. Witness went on. the lawn ten minutes later, and saw Goldsmith aiid the two accused walking off tlie lawn. That was the last he saw of therii. They were then apparently friendly. By Mr Nolari : He had no special' interest m these people, nor was he taking special notice' of them. He just had a slack time. He saw the ticket handed to the accused, only the one. It was a falsehood that the papers were snatched from Goldsmith. ■'•■'

Questioned, whether he thought Mr McKenzie was committing perjury, witness' declined to answer, saying that he thought McKenzie turned away at" this moment.

Proceeding, under- cross-examination, witness said that when the' ticket was passed over the accused and Goldsmith were sitting down, side by side, two yards away from him. After the ticket was passed his attention was called

away. Counsel for the accused submitted that the principal witness remembered nothing definite of what took place. He aslced the jury to attach "weight. . to the evidence of Detective Maddern and the last- witness. He pointed- out that people thought that Goldsmith and the accused were friends of each other, and the strik. ing up of a friendship on the racecourse, especially when the man was slightly under the influence - of liquor, was likely to lead to an exuberance of spirits. Goldsmith, he pointed out, had told the detec. tive he did not mind accused having the ticket. Why, ho asked, if there was anything m the nature of a theft, did Goldsmith not go and stop the payment of the money by Clegg Counsel further pointed out the variation m the evidence, contending the action of Goldsmith offering to accept £5 was sufficient to show that Goldsmith Tecognised he had given her the ticket. Coming to the allegation respecting the theft of the watch, counsel pointed out that the constable. saw nothing of this, and that Goldsiriith made no complaint about this till afterwards. Goldsmith was not telling -the truth, or t ho even's worn a mist before him. It was monstroi'ft to accuse people of felony on such evidence as that. Would any man with any sense who had been robbed of £9 offer to accept £5 and say they could have the rest? It was not a gues.

tion of Goldsmith being "taken clown," but one as to whether the money was stolen.

The Crown Prosecutor said he would not endeavor to strain the evidence for the prosecution as counsel for the accused had. To believe the defence the jury had to believe that both Goldsmith and McKenzie had come to perjure themselves to imprison two women, strangers to them "both ; neither could be benefited by such a course. He believed Mr Pilcher had given his evidence according to what he thought occurred, but he was not so interested m the incident as was McKenzie, and must have been mistaken. His experience of evidence was that stories that, were "pat off" without discrepancies always had the appearance of being faked. The discrepancy between Goldsmith's statement and Maddern's account of what Goldsmith told him only supported the prosecution. Proceed, ing, counsel, dealing with the discrepancy between the; evidence of Clegg and Goldsmith, said that the former was a busy man on the racecourse, whilst Goldsmith, himself, said he was only a yard behind. It was a significant fact that the money was stowed away m the stock, ing. Ladies did not generally carry a capacious pocket, but when it was put m such a place it was significant of something. Another peculiar thing. was their conduct when asked about this money, a point avoided by' counsel for accused. Accused declared they never saw Goldsmith before, yet Pilcher (their own evidence) related how he had seen them together. Was that, he asked, the conduct of innocent parties ? Assuming that Goldsmith ' gave the ticket and allowed them to collect it, what was their subsequent conduct? Did they reply, when accosted, that they, had been given the ticket, No. They replied they had never seen Goldsmith before. This reply, m itself, was fatal.

When the Court resumed at 2 p.m. His Honor proceeded to sum up. .There were, he said, two questions to consider m the three counts of theft. Tlie one was the stealing of the watch and the other the ticket. The theft of the watch was unlike the - latter, since there was no evidence that 'accused were' co-operat-ing. It was a curious thing that through the proceedings little, was said of individual act. Ther© was. plenty of evidence as to their working together m the other case.! The actions regarding the bookmaker's ticket stood ori a* different footing. It was sufficient for him to remind them that both accused declared to Gold, smith that they did not know him. If the ticket and its contents were stolen, there was some evidence who took it and received the money, from which they could infer, if they believed it, the accused were both thieves. It was probable that the one that received the ticket was the one that received the money, for she was later seen stowing away money m her stocking, so there , was a chain of evidence against her with which they could well include the other. The theory of the defence was that. Goldsmith gave this gift to the woman, but what, he asked, was the motive for the man to dp this? In order to; conclude that he made this present, they would have to suppose ho had come reason, and to do so they would have to discount the whole of his evidence. Again, what cause was there for Goldsmith to give the ticket tb the woman to collect? The evidence of Pilcher might he perfectly correct as to what lie /thought. The case depended upon the .question whether the ticket was given or stolen. Goldsmith might . have, readily an, weakly consented to the woman collecting the money. The singular part of the action was the direct contradiction , between Goldsmith arid Qleggi If they believed the former's evidence they might render an adjustment, for there was aoOm- for a slight mistake m the latter's evidence without effect upon his testimony. The j ury had to group this evidence together, and. decide whether it was an out-and-out gift or a theft.; If it was. the latter, it was well kept up> since the assertion was re. peated by' both of them that they did not know the man. This repudiation might help them m weighing' the honesty of the evidence. Goldsmith seemed to have. put his case m a singular way! 'by bffering to accept a . portion of the and thus obtain some salvage ; on this they were to construct their own opinion. It would hardly be -safe to convict one of the accused on the stealing of the watch, since there was no direct, evidence of identification, but if they believed this it would give some indication of what these people were. Goldsmith was most persistent m sticking to his story m saying that there was not the .slightest shadow of consent, and if that \vas made out, it demonstrated a piece of ordinary racecourse theft; but if they thought with the contradictions that the case hadi broken down, then they would give the women the benefit of the doubt. The jury retired at 2.35. ALLEGED HORSE-STEALING. Hare Matenga, the Native who by his long evasion from capture obtained much notoriety, was charged with the theft, at Tuparoa; about September, 1902, of a mare, the property of Hohepa Kakuroa. Mr H. J. Finn appeared for accused, who pleaded "not guilty."- * The following jury was empanelled: Messrs A. Robb, F. K. Rendall, F. Parnell, A. Ward, W. H. Hardy, r .. W, Revell, F. W. Pettie, E. Roderick, T. Bell, T. R, J. Adams,' E. A. Skeet, and E. A. Good (foreman). ''■■■'• The Crown Prosecutor, m opening the case, detailed shortly the facts of the case, and called witnesses.

(Per Press Association.) NAPIER, this day. At the Supreme Court Hugh Hamilton was sentenced to four years for indecent assault on a child at Woodville. "I make that punishment,' His Honor said, "because it is deserved, and m the hope .that it will be a warning to other evil minded men like you." Sentences were passed on Arthur Rouse, forgery and uttering, at Hastings, 6 months; Ethel Olsen, arson at Farndon, 12 months probation ; Gilbert Broad, attempted suicide, father and prisoner to enter unto, a bond of £50 for twelve months.

WELLINGTON, this day. Mr Justice Edwards to-day sentenced John Morrell to eighteen months' hard labor on a. charge of forgery and uttering. Edward McKenna,, who had plead.cd guiity to a charge "of forgery, was declared an; habitual criminal. Robert Smith, a youth, pleaded guilty to a charge of ' forgery ' and uttering at New Plymouth, and. was sentenced to twelve months. .