SUPREME COURT

Southland Times, Issue 17595, 6 March 1914, Page 2

SUPREME COURT

CRIMINAL BUSINESS PROCEEDING. HARLAND AND MeDOUGALL SENTENCED. The court resumed nt 10 a.in. yesterday when Edward Emanuel Harland and Duncan McDongHll came up I'or sentence on charges arising out of llic Bruy Bros, robbery. Uarland was first called upon, and stated that he was thirty-Jour years of ago. Mr Russell answered on behalf of the prisoner when he was asked whether he liad anything (o say why the sentence of the court should not he passed upon him. Mr Russel! said that the wheat which he had pleaded guilty of stealing had just been stolen when tiro cart was seen by the constable. That assumption was partly corroborated by Die evidence of the constable, who slated that when he saw the cart coming down Spey street it was coming from the direction of ITaiiand’s place. The offence was. lie was compelled to admit, an extraordinary one. and lie con Id offer no explanation of it. Accused had previously borne an exemplary character, and the only possible explanation was that ho was a fowl fancier and had about SO fowls, for which lie needed wheat. Me pointed out that prisoner had pleaded guilty, and had put the country to no expense. As showing the good character of file prisoner Mr Russell said that he had been for many years a member of the Oddfellows’ Lodge and had occupied the Grandmaster’s chair. He proposed with his Honour’s permission, to call one or two witnesses who would testify as to accused's previous good character. His Honour said that lie understood that there was no question niton l accused’s previous diameter. Mr Macalister said that he teas prepared to admit that accused’s character had previously been good. McDougall was then called upon. He ( said I hat he was 26 years of age. Mr Macdonald said that he wished to urge upon liis Honour the prisoner’s youth and the fact that up to the time of the first of the offences with which lie was charged he had borne an exemplary character. Ho asked his Honour’s permission to put two witnesses into the box to testify to Ills character. With regard to the charge of breaking and entering Bray Bros, to which lie had pleaded guilty, accused got none of the proceeds. His Honour : lie probably would have had they not been disturbed. ■loilii Hisiop. pastrycook, said Rial lie had known accused for four years, and had employed him for three and a half years. He had occupied positions of trust, and lie was willing to put him back there if lie got a chance. Harland was in the same position. He did not suspect either of them of taking anything from the shop. They had the run of the place at all times, but lie bad never missed anything. , dames McKeehnic said that be knew McDougall, and had known him since he was a little boy. He had worked for witness lor six months prior to lii.s going to Hislop'S. Mr Macdonald ; You knew him’before and since —Yes. ' Mr Macdonald : What sort of a character had lie V —l always found him honest. He had charge of the Waikiwi bakery and had to ’account for everything that came in and went ontj and I never found him dishonest. Mr Macdonald ; Did yon ever expect him to break on 1 like lie has done ? No. I did not. Mr Macalisicr ; You really only knew him for six months ?—1 have known him for many years. all' Macalister : or course the fact that you did not notice anything wrong did not prevent anything from happening V Witness said that lie would have noticed had anything gone wrong. Mr .Macalister said that it was true that nothing hail been known against accused prior to the offenuccs with which ite had been charged, but since then circumstances bad arisen which pointed to a systematic course of thieving. The police bad found articles in his ] possession which they suspected he had I not come by honestly. j His Honour said that Hie case of ; Harland was of such a character that he i thought lie would be justified in dealing with it under the First, Offenders’ Probation Act, He had pleaded guilty on one offence. His character seemed to have been good up to that time and the offence appeared to he isolated. Technically .accused hail pleaded guilty to j two offences, hut in view of the circumI stances lie would treat them as one. On ! the charge of breaking and entering lie I would lie admitted to probation for a ; term of eighteen months, one of the j conditions being that lie pay £ ft toj wards the cost of the prosecution in | monthly instalments of £1 each, com- ! mencing on June 1. The case of 51cI Dongall was more serious. lie had been found guilty of thefts which began in September and had continued until February. His Honour did not lit Ink that ho would lie justified in admitting him to probation, but felt that lie would have to sentence him to a term of imprisonment. In view of his previous good character his sentence would be short. The sentence of the court was that lie lie imprisoned and kepi at hard labour for (lie term of six months. The sentence applied to each indictment and would lie eoneurrenl. ROBBERY WITH VIOLENCE. William Preston was charged with, on •lanuary :!, robbing Duncan McDonald of fa l (| s, a sovereign case and a watchchain. and using personal violence in die act. Accused pleaded not guilty. Air Maoaliste.r prosecuted and Mr J. S. Neave appeared for accused. The following jury was empanelled ; Messrs M. F. Wood (foreman). A. Darkness. J. G. Corson, 11. 11. Holliman, J. M. Black. H. Taylor, A. Marshall. R. S. Eunson, David Luke, P. S. Knipe, Malachi Lenihan, G. Findlay. Mr Macalister said that accused was charged with robbery with violence and on a second count with He pointed out that if a robbery look place and the person struck the person robbed it would constitute an aggravated form of robbery, and that was the reason why accused was charged with robbery in an aggravated form. The facts wore simple, and Ihe jury would ho able j to follow tlie evidence without any difficulty. The difficulty in such cases, if there was any difficulty at all, was to say who did it. but lie thought that, they would have no difficulty after hearing the evidence in saying who did it. In the indictment the accused was charged with robbing Duncan McDonald. a fanner, who lived at Dipton. McDonald came into town on the day in question to attend the Invercargill races. He went to Miss McKenzie’s privale hotel in Esk street for (ea. and when lie came out of the dining room paid for the meal with a £ls note, placing the change in a sovereign case. Accused must have seen the money and then decided to get it. for lie wont up lo McDonald and commenced lo talk lo him, describing himself as a coal merchant and stating that lie had bought out Mr Murray. He said (hat he was going down lo Murray’s stable in Tyne street and invited McDonald to go 'lown with him. Having nothing to do McDonald agreed lo go, and they loft McKenzie’s hotel, passing through the Arcade and down Nith street sis far as Hip railway line. Accused was a carter and had been employed by Murray for sonic time. Ho hud a key of the stable, and they proceeded there. Accused opened the door and -McDonald, suspecting nothing, followed him in. Before he know where lie was accused caught hold of him by the throat, and tried to drag him on to the ground. Finding that lie was nnablo to do this as McDonald was tod strong for him he grasped McDonald’s watch chain, to which his sovereign case was attached, and then bolted. McDonald ran out into Tyne street but accused did not come out on to that street again. What was suggested was that he came out on to Forth street and not wishing to he seen went round to Liddel street. He had the chain and sovereign case, which could have been easily identified, and lie wanted to get rid of them. He apparently took the money out and then dropped the case and chain into Puni creek as lie passed over the bridge. It would be shown that the case and chain were found there. McDonald in Hie meantime ran to a shop" at Hie corner and rang up the police. He then returned to the stable whore the police afterwards found his hat. pipe and collar. Accused apparently crossed (he Puni creek bridge and came inlo town via the Crescent. He had been wearing a - straw ■ bat. but as be did not want to be identified lie made

for Halicnstein’s where he bought a cap and overcoat. Not wishing to walk through the main streets, he (hen crossed over to the cab stand where lie engaged a cab to go home. On his way he saw some friends, a Mrs McKadgen and her daughter, whom he hailed and invited them to ride in the cab. They went to McKadgon's place where accused remained until after nine o’clock, leaving there to go home. The assistant in the siiop where accused bought tin? coat and cap would he called and would tell them that a man had come to the shop on the night in question anil had bought a cap and coat, leaving a straw hat. which would later bo identified as accused’s, to be called for. M r Macalister pointed out that if in a case of that kind the accused person spoke frankly as to where he had been when the crime was committed it would be pretty fair evidence of Ids bona fides, but in this case accused bad made a statement which was afterwards found to bo untrue. The man who committed the offence no doubt knew the stable, bad a key to it and opened it without trouble: and there wore a number of little circumstances all of which pointed to the giiil-t of accused. Moreover he was identified by McDonald on the day following the robbery as his assailant. pvidence was given by Duncan McDonald who admitted tinder cross-exam-ination that he was playing a game of chance witli accused outside the hotel prior to their going to the stable, but he denied having lost the whole or any portion of his money. lie also denied that they gambled in (lie stable. K. r. Barry, a carter in the employ of Murray, .(. O’Brien, foreman for the New Zealand Express Co.. Bose Wilson, •Tames Hamilton. Herbert Boyce, salesman. John Reynolds, eabdriver, Margaret McPadgen. Constable Minister and Detectives Cameron and Carroll gave evidence, and this concluded the case for the prosecution. Mr Neave did not call evidence. Mr Mucalister. addressing the jury, said tliat it appeared that McDonald had met accused and two other men at the door of the hotel and by some means of their own provoked him to gamble. Their object was probably to ascertain whether ho had money, and the facts did not prejudice the case in any way. On the evidence before them there could be no doubt. Mr Neave said that the onus was on the Crown to prove the charge with which accused was confronted. In that case a good deal of suspicion attached to the whole matter owing to the condition of the parties. The sole evidence against accused was that of McDonald, who had been drinking and gambling and who said that accused had practically decoyed him down to the stables. There was, however, no evidence (hat any of the. property stolen was found in the possession of accused. There was no doubt that the men were gambling. and that money passed between them. If there were the number of people the Crown alleged present in front of the, hotel why had not the Crown produced some of litem to say what happened. The uncorroborated evidence of tbo prosecutor was not, Mr Neave submitted. sufficient to warrant them in finding accused guilty. McDonald, they must remember, was under the intluenee of drink at the time, and there was nothing suspicious in the conduct or inovei ments of accused. When seen by (he detective lie stated everything clearly, and tli ere was no shirking. it was for the jury to say whether they were satisfied from the evidence brought before them that they could find accused guilty. If there was any doubt whatever Mr Neave submitted that accused was entitled to the benefit of it. Summing up. his Honour said that the case for tlie Crown rested for the most part on the evidence of McDonald, who said that lie was at McKenzie’s hotel on the night in question and there met accused. His Honour reviewed the evidence at some length, saying that the first question for them to determine was whether the story told by McDonald was true or not. lie had given a circumstantial account of it, and there was "no reason to suppose that he would invent a story of that kind. The main question that they Jjad to determine was whether they could lie satisfied beyond all reasonable doubt that accused was the man who assaulted .McDonald and made off with the watch' chain. His Honour laid stress on the conduct of accused in buying a cap and coat at that hour in the evening, which indicated that Im wished to disguise himself. It was also a significent fact that if they look the amount of money spent and tidded it to the amount found on him when arrested it made just the amount stolen from McDonald. •The jury retired at l!.L':p.m. and brought in a verdict of guilty at g’. 10 p.m. Prisoner was remanded for sentence. PRIMP BV. Herbert Watson was charged that on Pchruary fi. mil. he committed perjury in the Magistrate’s Court at Invercargill on the hearing of a judgment .summons in which Broad, Small and Co. were the judgment creditors and Herbert Watson was the judgment debtor, by swearing to the effect that his brother had the contract for painting four cottages in Clyde street and that he was working for his brother on wages. A second count preferred a charge of perjury committed on tin- same occasion by swearing to the effect that he was paid wages by one Austin on orders given by his brother. Accused pleaded not guilty. Mr W. Macalister prosecuted and Mr Neave appealed for the defence. The following jury was sworn in : Messrs T. Bankin I foreman). .1. Pratt. •I. J. Ward, A. N. Brighton. A. K. King. A. Lyon. 10. P. Potman. W. .1. McGregor. H. tv. Ashley. W. P. Stroud, W. Walker, John Grant, junior. Mr Macalister said that it might be as well to explain the nature of the charge in the indictment. Perjury was defined as an assertion as to a matter of fact made by n witness in a judicial proceedings on oath. The assertion must be known to the witness to he untrue, and be made with intent to mislead the court. Assuming that he did not know 111 tit (lie statement was incorrect then il would not constitute perjury. The (wo statements in the indictment referred to the same matter. It appeared that accused was a painter and that lie contracted to do certain painting for a man named Adamson. The contract was arranged through an agent. Accused had a brother who was a tailor, and it appeared that at the time when tenders were invited accused’s brother pul in a tender. In connection with Unit contrail and other work accused had got paint, etc., from Broad, Small and Co., and they had proceeded against him for payment. They later proceeded against him on judgment summons, and it was to meet that summons that accused came into the Magistrate’s Court to be examined. It was during that examination that lie made the statements upon which the present proceedings were taken. Mr Macalister went on to point out that most people knew that perjury was mote or less common, and that people who were on oath often made statements which were untrue, hut in the majority of such cases. Hie witness did not know that the statements they made were in- j correct. The faet that perjury was j common should not prejudice the jury j in any way against accused, and if it was clear tha_C the witness had made a | mistake (hey would lie justified in ac- i quitting him. The mere fact that a person made a mis-statement once during the progress of a court ease was not very serious, but if the statement was ’ challenged at the time and the witness ; persisted in it tin? matter was far more serious. Accused during the examination referred to swore that he was working for his brother on wages, and lie produced his, wages book to show how little he earned. He .submitted that the intention was to. mislead the magistrate to the length that lie was not the contractor. that he was working on wages, and that his brother was the contractor. According to Hic second count accused slated that he worked on wages for one Austin on orders received from his (accused’s) brother. Jf it were shown that that was not true they would be justified in saying that accused was guilty of the charge preferred. Kvidence as to tin? court proceedings at which the statements in the indictment were made was given by J. B. Colyer, clerk of the Magistrate’s Court. A. Bnindford. bailiff. I”. J. Tipping, solicitor, and W. A. Stout, solicitor, who represented Broad, Small and Co. in the lower court proceedings. A. Austin, liou.se. land and commission agent, was another Crown witness. He said that among the tenders for work to be done for a man named Adamson was one from J. P. Wmsott. After this tender had been accepted accused. Herbert

Watson, called on him and asked whofi tender had been accepted. Witness said Watson’s was the lowest. Believing that lie was the man Who had made the tender lie drew up a contract while accused waited in the office, and got him to sign it. Accused had not at that time even written a letter regarding the contract so far as witness knew. He took J. Watson’s letter to be from H. Watson. He bad known accused for five years and when he found that lie had made a mistake throe or four days later he asked accused to give him a facsimile of his brother’s letter. There had been sir tenderers. Mr Macalister: Then you should have made a contract between J. E. Watson and Adamson ?—Yes. Mr Macalister : Why did you hot do so’?—l made a mistake. Witness commenced to make a state- ' ment that lie was responsible for all the trouble, but he was checked by his Honour. Mr Macalister ; You did not know J. P. Watson ?—No. -Mr Macalister ; So to put things right you got Herbert Watson to tender, when you had already contracted with him ? Ves. Jir Macalister : Did you know that .1. P. ’Watson was a tailor ?—No. Mr Macalister: Did you ask accused how it was that his brother, a tailor, j had tendered ? —No. I did not know. ! Mr Macalister ; You gave evidence in j the lower court ?—Yes. Mr Macalister ; You remember you were asked why the contract was not signed by J. P. Watson. Did you not say that it was because lie was a tailor? .—Witness several limes repeated the phrase “T beg your pardon."’ His Honour asked Mr Macalister whether it was worth his while going on if lie was going to discredit his own witness. Air Macalister said that the evidence only affected the method of the making of the contract. Witness went on to say that all moneys in connection with the contract were paid on the order of H. Watson. Did you pay any money on the order of J. P. Watson?— No. Payments were made between what dates.;— Periodically from December 20 to February 2. You said that accused was in charge of the job?—He was the man we were looking to. Well, lie was the contractor, was he not? Witness said that it was a question of law, and lie was not prepared to answer. Well, to, put things right you got Herbert Watson to tender?—No not until afterwards. Then you put tilings light by getting him to tender after lie had signed the contract. That is true, is it not?— Yes. Mr Neave did not cross examine. His Honour asked what there was in corroboration of Austin’s evidence. Mr Macalister—The documents, your Honour. His Honour—So far they have not been proved by anyone. Mr Macalister —I think so, your Honour. His Honour —Who lias proved them? Mr Macalister —Austin produced them. He had them signed. His Honour—Austin says so. He asked Mr Macalister whether he had any evidence that the signature attached to tiie contract was accused’s. Mr Macalister said that all the circumstances taken together left no doubt that accused was on the job and getting the money. His Honour—All that depends on Austin’s evidence which has not yet been corroborated. If you rely on one witness to prove the documents you really have no corroboration. Mr Macalister said that ail the circumstances were proved independently out of tiie witness' own mouth. The j contract had been produced in the lower j court by Austin and it had since been in i the custody of the Clerk of the Court. | It was produced again by Austin. 1 His Unnotit Who says that it was j signed by Watson. I Mr Macalister said that it was not as 1 if the document had not been acted up- ! on. As a manor of law it could poss- ’ ibly be urged that there was not suffi- . cient evblene--. J Ills Honour said that it was a ques- | tion of whether,,the documents wore ! evidence. Mr Macalister —The .same documents were produced in tiie lower court, j His Honour —They came from Austin. I Mr Macalister said that since then I they luid been in tile custody of the I Court. They still remained in that i custody. I His Honour —They do not acquire any ! special virtue by being in tiie custody I of the Court. ! Mr Macalister said that as 11m documents were in the custody of the Court there would have been ample time to satisfy any doubt as to whether the siguatur'wa- that of accused. The documents were produced by Austin in the j lower court, but they were not challenged there. Mr Neave —Accused was not charged j there. j ills Honour said that he was satisfied that there was enough evidence of the j genuineness of the documents to estahI lish them. | Evidence was also given by Detective Cameron. ! Mr Neave said that lie did not proj pose to onII evidence. ! Mr Macalister juidresserl the jury. | contending that in face of the evidence | they could not assume that J. E. Wat--1 son was the contractor. Similarly with | respect to the second count it had been j shown that tiie money had been paid on | the order of H. Watson and not by J. |p. Watson. The facts showed conclusively that accused was the contractor, and that all moneys were paid on his order. Mr Neave made a brief address. Tt wrm shown from the evidence That Austin. acting as agent for the owner of soma bouses, accepted tiie tender of J. P. Watson for painting. About a week after the signing of the contract Austin got accused to write nut another tender. Thai was done, and it was dated hack to agree with Hie contract. It was quite dear throughout the proceedings that accused was acting as agent for his brother, and if that were the case then he was not guilty of perjury. Austin apparently did not treat him as the principal (tarty in the matter and after all. what the jury had to lie satisfied about was that the evidence given in the court below was false and that it was given with the intention of misleading tiie Court. Tim position .at the outset was that accused had not sut ficient monev to finance the job. so lie got his brother to take the contract and finance it for him. The jury must remember that they had I" he satisfied that Hie evidence was false was v*Ufu false—and that it was given with the intention of misleading the Ciurt- , His Honour summed up and the jury retired at five p.m. They returned at n.j p m with a verdict of guilty, i ' Prisoner said that he was twenty-three I of age and asked for leniency as tins j was his first and would lie ins last of--1 HD Honour said that as accused had I borne a good character he wan disinclined to send him up for a term of ! imprisonment, but the case was of such [ •' nature that some punishment ban to ! be inflicted. He was to pay a fine of tbii-tv pounds and to he detained until the money was paid for a term not exceeding six months.