SUPREME COURT.

Taranaki Daily News, Volume LVI, Issue 17, 20 June 1913, Page 6

SUPREME COURT.

NEW PLYMOUTH SESSIONS. CRIMINAL CASES. The New Plymouth sessions of the Supreme Court opened yesterday morning before his Honor Mr. Justice Edwards. GRAND JURY. The following Grand Jury was empanelled:—A. Alexander, E. Beckbessinger, W. H. Broome, C. H. Burgess, H. Calvert, A. L. Cook, F. P. Corkill, W. Cutfield, 0. Deacon, H. George, G. W. Hartnell, J. Hayden, P. S. Johns, C. H. Jones, W. J. Lonergan, N. K. MacDiarmid, J. C. Morey, W. Pellew, J. Rollo, J. Skinner, J. Wallow and F. M. Turton. Mr. Corkill was chosen foreman. HIS HONOR'S CHARGE. In his charge to the Grand Jury, his Honor said he had to congratulate them on the lightness of their duties that day. Two bills would be presented for their consideration, neither of which would give them much trouble. The principal charge was one against a male person for indecently assaulting another male —an abominable offence, which sapped at the root of all morality. There should be no difficulty in coming to the conclusion that the person ought to be put on trial. The other was an apparently minor offence, for breaking and entering a shop anii stealing some cigarettes. The evidence was purely circumstantial, but although Circumstantial, there should be sufficient against these, two persons'.for tlieni to find a true bill, and leave the matter to be settled before the common l juryTRUE BILLS. The jury found true bills in both cases as follows:—Henry Francis Smith, indecently assaulting a male person; Charles Pearce and Alan Brown, breaking and entering a shop, with intent to commit a crime. ALLEGED INDECENT ASSAULT. Before the trial of Henry Francis Smith, for alleged indecent assault, commenced, prisoner, who pleaded guilty, stated that he could not afford to em-, ploy counsel, and asked that the privileges of the new regulation regarding impecunious prisoners, should be extended to him. His Honor stated that prisoner was not entitled to be defended at the cost of the Crown, unless, he satisfied the Court that he had reasonable grounds for pleading "not guilty." He would, however, allow the case to stand down, to see if any counsel would undertake the defenoe. Finally, Mr. A. H. Johnstone agreed to appear for the accused, and the case was accordingly allowed to stand down. ALLEGED BURGLARY. The case was then called of Charles 1 Pearce and Alan Brown, accused being charged that on March 9, at Stratford, they did break and enter the shop of Samuel J. Pivac, of Stratford, and did steal therefrom cigarettes and cigars to the value, of 14s, and, further, that they did break and enter the shop by night with intent to commit a crime therein. There was a third indictment of theft. ( Both accused, who were defended by Mr. W. D. Anderson, pleaded not guilty, and the following jury was empanelled: —G. Morris, M. Morris, F. Richards, F. Morshead, W. G. Reid, W. Olliver, L. Marks, D. H. Nippert, S. W. Jury, L. R. Little, A. Lee, J. Clarke. Mr. J. Clarke j was chosen foreman. After outlining the case for the Crown, I Mr. H. H. Ostler, Crown Prosecutor, called Samuel J. Pivas, restaurant-keeper, of Stratford, who deposed that at 11.45 p.m. on March 9, he closed the four doors of his shop, and went to his private home. At 2.30 o'clock next morning he was awakened by Mr. Stone, a jeweller, and, in consequence of information received, he proceeded to his shop and opened the till, but found nothing missing. Inside the second dining-room he picked up a hat, and foupd a name inside, "C. Pearce." • Two doors and one window were open. He afterwards found that 20 packets of green Three Castles cigarettes and three cigars were missing from the shop. Witness knew both of the accused well by sight, but did not see them in the shop on the evening of March 9. Hie understood that the former tenant of the rooms was a Mrs. Brown, mother of one of the accused. Cross-examined by Mr.. Anderson, witness said that he did not carefully examine the floor of the shop before locking up on the evening in question. He kept no check on the number of cigarette packets stored in his shop, and his wife and the waitress also used to sell the cigarettes. Witness bought his supplies of tobacco from Mr. C. E. James, tobacconist, Broadway. Re-examined by Mr. Ostler, witness deposed that in passing to a glass case in which the bread was stored he would have to pass over the spot where the !::it was afterwards picked up. Joseph Stone, jeweller, Broadway. Stratford, stated on oath tli.U he slept in his premises, and on the evening Alureli 9, at ten minutes before two o'clock, he v was .awakened by a passing motor. Twenty minutes afterwards he • heard footsteps at the rear of Pivac's premises. Witness got out of bed, put something o;i, took his revolver, and went outside. He listened at the door of Pivac's shop, and heard the rattling of the till, which noise did, not stop when he knocked on the door with the butt of his revolver. He fired the weapon to srive the alarm. After firin<r, he heard the noise of someone running; towards the back of the premises. No one answered his shot, so he again fired his revolver . The place was afterwards quiet. Witness proceeded to Pivm's private house, and Pivae, acco'noanied bv 'ms wife, went to the shop. When the lish't had been switched on. the first thing he saw was a straw hat Iving on the floor. He noticed the in-tie 'C. Pearce" inside. Two doors and :i window were open. The evidence of Fannie Pivac corroborated that of previous witnesses.. Thomas Marshall deposed that the hat produced was similar to two lie had sold to Peawsd in December, 1912, and February, 1913.

F.vidence was wiv« n i, v Thomas Wilson, a member of the Fire Brigade, that he saw Pearce and Brown at about 1.30 ii.ni. on March 10. and both accused appeared to go away together. f ross-examiried l>v \fr_ Anderson, witness said there was a elav bank nenr the station. "He believed that some of the bovs who were at the station that evening had had liquor to drink. Pearce, lie believed, was wearing at the station a howler hat, and had a fireman's coat on.

S. Bernard, musician, Stratford ,denosed J lint he liad walked with the previous witness from the fire brigade station and down Broadway. He saw 1 earee riding a motor cycle, but there were eight or nine other men with both perused. He would not say they were Munlv, hut thought thev hatt been luivjn? a few rtrinks, C-oitlon AlcMalion stat'ul, in the course -f his evideiiP that he had been drink'•ig with the accused on the evening of March 0.

Cross-examined, he said that he was Me first to lcve the party assembled in 'loadwaii. and did not se» Pearce «r Thrown .leave. Up to 10 o'clock Pearce "Mist have hail seven or eight drinks, and 'here was a nnantity of liquor consumed -t Hip Firs Brigide Station. He considered Brown a.nd Pea re- wore drunk when they were at th* sbitif,. hut he di* not 'int>ee conditio* afterwards. There was sky-larking at the station.

William McNeely, polioe sergeant, sta-1 tioned at Stratford, gave evidence that | in consequence of a complaint received from Mrs. Pi vac, who had brought him a hat, bearing the name "C. Pearce,' he went to the Crystal Coffee Palace, in which place he had learned that C. Pearce resided. He found the accused Pearce, undressed, sleeping in a single bed. In the same bed was the accused Brown, who had his trousers on. Brown's leg was protruding, and he noticed, on the leg exposed, a smudge of yellow clay, which appeared freshly put 011. The time was about 3 a.m. on Sunday. There were two pairs of boots in the room, and the smaller pair was claimed by Pearce and the larger pair by Brown. When questioned, Pearce said he had had a straw hat on on the previous evening. The hat, he said, he had purchased from Mullen and Marshall, and that it had both the trade name of the firm and also his own name written inside. Accused remarked farther that he couldn't produce his hat, as he had lost it the previous evening. While iu Broadway. The accused said he had been riding a motor bicycle, and might then have lost his hat. The first time lie had missed it was when opposite the Post Office on his way home. He had passed the remark to Brown, "I have done my hat!" Either Brown or McMahon/whom he said were also with him, had replied, "You are stiff:" In company with Constable McCown, witness continued, lie visited Piwac's shop. On the second occasion witness went into the back yard of the shop and found three separate and distinct footmarks. They appeared fresh, especially in the right-of-way, where the clay was soft. Witness and the constable' traced the. footprints from the tack door to the right-of-way." In the yard they found twelve packets of green Three Castles cigarettes. They followed the tracks, and near the mouth of the right-of-way found a fair-sized heap of clay. The marks aof feet apprared to show that someone had scrambled over it. There was a noticeably small footprint, which j was sufficiently good to enable witness to ' take a rough plaster cast. The measurements of Pearce's boot and the cast taken by witness appeared to be identical. Later in the day they took the cast of another boot mark. There was a cut on Brown's boot, and an indention on the cast corresponded with it. He arrested Pearce early on Sunday morning, and Brown on Sunday night. In the possession of the latter were two packet of green Three Castles cigarettes. On the two packets found in Brown's possession, the letters "r.e." were very indistinct, and immediately underneath there was a small dot of gold paint. This peculiarity existed on the cigarettes which were found in the yard, but although he had tried at various shops, he could not find packets of cigarettes with this same peculiar feature.

Cross-examined by Mr. Anderson, Sergeant McNeely said the right-of-way was common to four shops. There was a heavy dew in Stratford on the night in question, but he' could not say that it was possible for the clay on the boots of Brown aiid Pearce, and the clay on the trouser knee of the former to have been caused through sky-larking at the station, and coming into contact with the clay bank there. The footprint lie took in the afternoon was the same as he took in the morning, and ho had protected the footmark by circling it and placing a stick over it. He did not think either Pearce or Brown were drunk, although the latter looked as if he had been drinking. He found no cigarettes on Pearcc.

Cross-examined by Mr. Ostler, Sergeant McNecly said that he did not take any cast of the third foot-print, which appeared to have been made by a Hew rubber heel.

Alexander MeCowan, police constable stationed at Stratford, corroborated the evidence of Sergeant McNeely. (This closed the case for the Crown. Mr. Anderson stated that it was not his intention to call any evidence on behalf of the accused. These young men, as they were aware, had joined in some jollifications at the Fire Brigade Station on the evening of March 0, but there was no direct evidence as to what tko accused had done after 1.30 a.m. To prove its case, lie continued, the Crown relied on circumstantial evidence under four heads. The first was that of the footprint casts; the second the discovery of the hat; the third the clay stains on the boots, and the f ourth the fact that one of the accused (Brown) had in his possession ...two., pr.ckets of cigarettes, similar in certain peculiar respects to those that vere in l'i vac's shop. The footprint casts, he said, were not good evidence, and not to be compared with the evidence of fingerprints. It was possible that the third footprint had been made by Mrs. Pivac, and the other two by Stone and Pivac. The second point made by the Crown was that of the finding n? thff i s t, but in evidence had been f ;iven '.o show that Pearce was actually wearing a straw hat. On the third point, be instanced the fact that*the clay > '"Vatford was of a uniform class, uid ' • /:iv in the right-of-way was si-inks vO thnt outside the station. On thn ;ast point, he claimed that it would be .ibsurd 'io admit that these few packets were the onlv ones to bear the peculiarities mentioned. There was really no satisfactory evidence that the Pivac themselves did not sell them to the accused. Counsel also contended that both the accused were drunk on this occasion.

His Honor then addressed the jury, and after a retirement of over an hour, the foreman announced that they found Brown not guilty, but Pearce guilty of breaking and entering, with a strong recommendation to mercy. ° His Honor: Do you find Pearce guiltv ;>f breaking and entering by night with intent to commit a crime? '

The foreman: No; we were not of that opinion. We thought that Brown's presence in the building was more as a joke than anything else. We considered

that there was not sufficient evidence to show that he stole anything. His Honor then asked the jury to retire and re-consider their verdict in Pearce'a case. Brown was discharged. On returning, the jury found Pearce guilty on the second indictment, that of breaking and entering by night with the tent to commit a crime. His Honor said he would consider the jury's recommendation for mercy, and if the probation officer's report were satisfactory lie would admit the accused to probation. Sentence will be passed to-day. ALLEGED INDECENT ASSAULT. In the case of Henry [Francis Smith, there were two indictments for alleged indecent and common assault, alleged to have been committed at Omata on Aug-' list. 18. Mr. A. IT. Johnstone appeared for the accused, and the following jury was empanelled:—A. George, A. Evetts, S. Carter, W. A. Gray, E. Gerard, R. Jury, E. C. V. Unwell. 0. B. Webster, J. H. Redwurd, J. A. Bishop, T. A. Berridge, H. E. Bennett, and H. Sampson. Mr. R. Jury was chosen foreman. Mr. H. H. Ostler conducted the case for the Crown. The youth alleged to have been assaulted, stated on oath that he was seventeen years of age. At 11 o'clock one Saturday evening, when in front of Bullock and Johnson's store, on the South road, his bicycle tyre went down, and lie stopped to blow it up. When blowing up liis tyre, the accused came along, and asked if witness had a puncture. Accused then asked how far witness was going, and on learning this, said, "We'll be company." When they got to the top of . the hill, accused said he was tired, and they walked along for a while. Afterwards, witness was asked to sit down; and they sat down on accused's coat. Accused gave him an orange, and asked questions about certain apples. Then accused made an im-' proper proposal to him, and witness ran away and got inside the gate of Mr. Bowling's property. Afterwards, he saw Smith again, and the accused said, "If you don't come along, I'll take your bieyc'le." ' Witness did not answer. He saw the accused mount his bicycle and ride it up the road towards Omata, but after having gone some distance, he concluded,' by seeing Smith's light go out, that the accused was waiting for him further down the road. 1 Witness went into Cowling's house to see if there was anybody who would go along with him. With that intention lie woke up Mr. Cowling. That was about midnight.After Mr. Cowling anil himself had gone fifty yards or so, t.licv came across the accused walking towards town again. As Mr. Cowling had said that witness might go and' sleep at his house, they turned back again. However. Mr. Cowling stuck up the accused, while witness met some people lie knew and drove home, carrying the Uicycle with liim. Cross-examined bv Mr. Johnstone, witness said they walked up the first hill. They talked about several things—the price of butter-fat, and the markets at Home. Accused was bicycling on the left-hand side, and had a lamp on his bicycle. AVhen this alleged assault took place, Mr. Cowling's was the nearest house. He did no t call out. but thought the safest plan was to get away quickly. H ( > had no copies of the deposition taken in the Lower Court, and they had not been read over to him since being taken.

Arthur William Cowlinj*, laborer, living; at Omata. deposed that the previous witness was his half-brother. The boy came to his house and knocked at his door. As a result of what the boy said, he got up, dressed, and then went up the road with him towards Omata. Thev met the accused coming alornr the road but witness did not speak to the man as lie was not certain who the accused was. After passing Smith, he told the youth lie could either go on, or ston at Ins place. The hoy came back with him, but they, had hardly gone a few chains

before they again met Smith, who stopped witness, and said, "Excuse me a J minute!" Smith,.told tfee boy to wait, but the lad went away and stayod out' of earshot. Smith apologised to witness I for interfering with the boy, and said ho was very sorry for what he had done. Accused also admitted' that he| had gone a bit too far with the boy, but excused himself on the grounds that he had had a few drinks. Smith further stated that he would rather give witness £IOO than let it leak out what he had done. Smith did not appear to be the worse for liquor. The night was not a very dark one. He only knew Smith by sight, and not to speak to. Cross-examined by Mr. Johnstone, witness said lie saw no bicycle lamp. He did not, ( rceognise the people in-the trap who went by. ' Witness did not start the conversation, and, after talking together, tliev parted company, accused going on his way. Herbert John ' Egan, constable sta- j tioned at New Plymouth, gave evidence as to the arrest of accused at Devon I street. When charged, Smith replied. "This is news to me." After a short 1 time accuserl asked what tinnv I lie alleged assault occurred, and when told, replied that at that hour he was at Blanchard's store and went home via the Barrett Road. I

In reply to Mr. Johnstone, witness said the Omata Hill wa •. not in good condition for cycling. Mr. Johnstone called 110 witnesses, but proceeded with his charge to the jurv. The prisoner at (lie Bar, lie said, was charged upon two counts —one of indecent assault, and one of mere assault. With regard to the charge of indecent assault, lie might here remark that the ciifum- 1 stances surrounding the alleged fact. | made it one of the most disgraceful things known amongst mankind. For such a crime was tantamount to saying that he was unfit' to associate with his fellow-men. Counsel impressed upon the jurv the fact that if there existed any reasonable doubt in their minds as to the guilt of the aceiued. it was their dutv to acquit him. The facts in the case were comparatively simple, but they were fraught with much gravitv to his client, lie wished to draw attention to the possibility of mistaken identity. The night was a cloudv one, and Cowling had failed to recognise the persons in the trap. Then they were told that the licensed had come along and j"M)lo<;isf<d for such an act as was allegf " against him. The thing was inconce:>able.

In the course of his charge to the jury, His Honor said that they must dismiss altogether from their minds the question of probability; The crime was a shocking one. but unfortunately it was a most common thing in these days. Numerous eases of the sort had come before the Court, and there were still more, which ought to have come off be-; fore th" CViJi;-f. but. did not. The evi- ' dene" nf tli" n-itnesses in this case was unshaken. When arrested 1 accused made ft statement to Constable Egan that he was at Blaiulmrd's store, and went home bv Barrett's road, but why did he not brins; a witness to prove this? If the jury any doubt, it was their duty t" acquit him. hut they should not acquit him because they considered that the crime was too disgusting to be bel'pved. ' n After a short retirement, the jurv returned with a venlict, of not raiiltv of indecent assault, but siiiltv of "common assault. His Honor stated that sentence would be passed on Monday.