TUESDAY—DECEMBER 14, 1909.

Colonist, Volume III, Issue 12723, 15 December 1909, Page 4

TUESDAY— DECEMBER 14, 1909.

(Before His Honour Mi" Justice Denniston. CRIMINAL SESSIONS. CHARGE OF PERJURY. A young man named Louis Schwass, of Hope, was- charged with "having committed perjury during the hearing of a civil action in the Magistrate's Court at Brightwater on 21st July last, in which Elizabeth Bower Tebay was plaintiff, and accused was defendant — (1) By swearing that he did, not on or about the 27th June, 1909,---drive for. several miles one milking cow and one heifer away from near the plaintiff's property at Hope; past Richmond, and thence towards Stoke.

(2) By swearing^that he had nothing to do with the cattle belonging to Elizabeth Tebay from the time he turned down into -Webley's lane in Richmond.

(3). By swearing to tho effect that he did not drive the cows, the property" of Elizabeth Bower Tebay, in Queen street, Richmond, "or head them in Queen street, or do anything te them in Queen street.

(4). By swearing that ho did not follow tlie coves, the property of Eliza-beth-Bower Tebay, past Queen street, Richmond, and was not on the road between Richmond and Stoko on tlie 27th day of June, 1909. - Mr C. R. Fell appeared for the Crown, and Mr A. T. Maginnity for tho accused, who pleaded not guilty.

The following were the jury : Messrs John Scott (foreman), W. J. Baird, H. R, Dodson, W. J. Green, A. H. Barltrop, E. W. Frost, W. T. Haigreaves, H. Wimsett, P. A. McDonald, W. MeConchie, H. Baigent, and F. L. Gaze. All witnesses were ordered out of Court.

Having outlined the evidence, he proposed to bring out, Mr Fell called : Constable Fleming, who gave formal evidence as to the accused being sworn at Brightwater. To Mr Maginnity : Accused was sworn by the clerk of the Court ; he remembered seeing him sworn. James Sim Evans, Stipendiary Magistrate for Nelson district, doposed that lie held- a sitting of the Magistrate's Court at Brightwater on the 21st July last. Mr Maginnity raised the point that His Honour had previously ruled that the judge in a case could not be called to £iive evidence. His Honour said that lie had ruled that the judge's notes should not bo produced. That was done moro as a matter of dignity. In any case it did not apply to magistrates, as very often the magistrate's evidence was nil the higher Court had to go on. There was no law on the point. Mr Fell continued his examination, and the witness took out his notes of the case. Mr Maginnity asked if tlie Magistrate could read from his notes? His Honour said that he could. The witness said that he could give his evidence from memory, and he was then examined and cross-exam-ined, Witness' evidence was similar to that given in the lower Court. Norman Bateup deposed that he saw accused driving three head of cattle towards Richmond. Accused had a whip, with which he occasionally struck the cattle. Cross-examined : His opinion, from what he- saw Sctnvass doing, was tfiatSchwass was driving the cattle. George Edward Webby saw accused following the cows— -he was two or 2V chains behind the cows. The cows were passing in front of witness' place, and towards Richmond. After the Brightwater case, accused had a conversation with him, and requested him if he was asked if he had seen accused, to say No. Cross-examined : He did not say anything in the lower Court about th? conversation, as he did not think of it.

George Kidd deposed that he saw the accused head three head of cattle in Queen street. One of the three cows ho knew belonged to Mrs Tcbay. Cross examined : Accused had a whip — a spring cart whip. Witness saw accused strike one of the cattle with tlie whip. Ethelbert Croucher stated that he saw accused with three head of cattle in upper Queen street. Herbert Newport .stated that ho saw accused driving cattle in Oxford street. The cattle turned towards upper Queen street, and accused headed them on to the road towards Stoke. Percy Beach stated that ho saw tlie accused -driving cattle in Queen street and Salisbury road. He saw accused head the cattle in William street and drive them towards Stoke. Henry Citing deposed that he saw a man driving stock past his place at Stoke on the 27th June last about 5 o'clock in the evening. His place was iihout three miles from the Riclimond corner. Cross-examined : He could not identify tho driver of the cattle as the accused. Constable Cameron deposed that ho found the cattle at Tah-una. Godfrey Taylor stated that he caught up to accused on the main road between Stoke and Richmond, near the freezing works, on the evening of 27th June. Accused told him that he had just come from Blenheim. Cross examined : He confirmed his recognition of the accused when he passed a street lamp at the Richmond corner. William Robinson stated that he did not remember the accused being at his place on Sunday, 27th June. This concluded the evidence for the prosecution. i Mr Maginnity did not call any evidence for the defence. Mr Fell said that there could be very little doubt as to what accused had said in the Brightwater Court, and he would leave it to the jury te say whether all the witnesses who had given evidence, had conspired together to send accused to gaol, or whether the accused's story in the Brightwater Court was false.

Mr Maginnity, addressing the jury said he was not going to propound^ to them a new code of morals, and te say that a lie was not a lie,nor was ho going to ask them te plunge on so--eiety a felon guilty of so serious a crime as that with which the accused was charged. But they must be satisfied beyond all reasonable doubt that the accused was guilty of the crime charged in the indictment. One of the witnesses called by the Crown swore that the accused was not driving the cattle. The evidence of the other witnesses for the Crown was quite susceptible of explanation without in any way reflecting upon their credibility... Mr Maginnity suggested to the jury that witrnasses for -the Crown had concluded, from the fact that tlie accused was seen on tho road in contiguity, to the. cattle, that ho was driving therii. He pointed out that not a scintilla of evidence had been -led by the prosecution to show any motive on the part of the accused, and this the jury must. keep uppermost in tlieir minds. He submitted that viewing all the circumstances tho evideuce was too . slender for them to convict upon. They had a grave duty to perform. He had also a grave duty to perform, but while they must keep their Courts of justice pure and /unsullied, 'they must: not, except upon the most conclusive evidence, convict an accused person because it was fully recognised that it is better that a hundred persons should, go free than that - one. innocent person should be convicted. -. . His~ Honour, 1 in- summing up, said that the accused's denial of tihe fact"] that he interfered with or drove the v cattle, was really the basis': of. 'the. : case. It was quite claer' that the ' accused made; the statement mentioned in the indictments, in . the

Magistrate's Court at Brightwater. If the jury f.. . - -'- -it the accused -took an active part iv driving the cattle, then his statements were false, and were made with the object of misleading the Court, and he was guilty of the charge. The jury alter a retirement of 20 minutes returned with a verdict of guilty. Mr Maginnity asked that the accused Be dealt with as a first offender, and admitted to probation, failing that, that a conviction, be recorded, and accused ordered to com© up for sentence when called upon, or that a fine be imposed. Nothing was known against the accused, and he implored His Honour to give effect to the suggestion he had mads. His Honour said he greatly regretted having to send- a young man to <t aol, but he had committed perjury deliberately, and he must deal with the case in a severe manner. He wished he could see his way to do otherwise, but he could not. Accused would bo sentenced to six months imprisonment. . . This concluded the criminal sesThe Court then adjourned until this morning.