SUPREME COURT.

Timaru Herald, Volume XXXIX, Issue 2881, 17 December 1883, Page 3

SUPREME COURT.

HALF-YEABLY CRIMINAL SESSION. TIUABtT, Satuedat, Decbmbib 15th. (Before His Honor Mr Justice Johnston.) His Honor took bis seat at 10 a.m., and the trial of criminal cages wag resumed, there remaining only one to be dealt with. A3BAU.LT WITH INTBITT TO 808. James Cueyne was indicted for, on the 21st July last, assaulting William Myers with intent to rob him, be being then armed, a second count charging him witb a common assault. A second indictment charged him with demanding mom-y from My<ra with threats and menaces. The prisoner pleaded cot guilty to both indictments, and Mr Hamersley appeared to defend him. The following common jury was choson : — J. Bapsey, J. Orr, W. Budd, E. Jones, B. H. Chrk, J. Reid, W. Kawstorn, P. Broanahnn, W. J. Hoggins, D. Ross. R. Austin, atd R. Edminson. Mr E. Jones was chosen foreman. Mr White, Crown Prosecutor, having sketched the case for the prosecution called the following witnesses : — William Myer?, a farmer living near Waimate, gave evidenoe to this effect : — He left Waimate with a horse and spring cart about eleven o'clock on Saturday nigl.t, July 21st, to go home, his road taking him through the Gorge. There was a moon, but the sky was cloudy and it waa ralber dark. The night being cold he walked beside his horse withio the Gorge, to keep warm. He stopped once to give the horse a drink, but did not notice aoyone pass him then. (It was shown by another witness that two horsemen parsed him at this time.) When about half way through the Gorge he met a man, who be now believed to be the prisoner, on horeeback, but be could not swear it. The man dismounted, and going to the bead of witness' horse, eaid "Stand and give up your money. Don't move, I bare four revolvers ." Witness said he had no money, orily 4d c io ooppers. The man asked him if he knew who he wag, and he replied that he did not, whereupon the other said he was Dick Turpin. Witness had heard that name, but did not know who or what Dick Turpin was till afterwards. The man then told him to take his horse out, and witness said he would do as he was told. The man had something in his hand pointing towards him (fium his hip) ; he did sot think it was a revolver, but couU not see clearly what it was, it was eo dark. He was very much frightened. He believed at the time it was a knife, and was afraid of being stabbed— expected to bo stubbed every moment. Ho took the horse out of the cart, tho man helping, and the latter then tipped the cart up. Witness wis then ordered to take the reins off. The other horse had been left loose, and as it was walking away the man went after it, b"ought it back and left it beside witness'. Witness vent behind the cart and pretended to do something there, looking for a chance to get away. His assailant, having brought bnck his horse, came to the cart too, went down on one knee and beg<in to feel among the things in the cart. Witness moved away, went to the horses, and jumped upon the other's horsa, as it had saddle and bridle on, while his own had not, and rode away towards Waimata. The horse appeared to be knocked up; he could scarcely get it out of a walk. The man said nothing whon witness took his horse, he could not siy whether he saw him go, be did not call his attention to the fact. He presently met a man on foot, but ho did not speak to him. Soon afterwards be met two horsemen, and told them he had been stuck up, and turned back with them. Whon theyncared the cart they saw witness' assailant and tbe min whom he had met on foot, standing together bosido witness' horse, apparently quarrelling. The former came up to them and siid " This — — German stuck me up," and struck him a blow with his fist. Witness then saw that the man was drunk ; he did not observe this before. The man stripped and wanted to fight him, and then the man on foot stepped in and said '- If you want to fight, fight me, and leave th.t man alone." Witness could not' say whether they did fight, and the man left shortly after. Win. Lilly, a groom living in Wnitaki Valley, stated that he rode through the Gorge that night with the prisoner. They pisjed Myers while the latter was giving his horse a drink, but be could not say whether Myera »»w them or not. oheynßwas pretty drunk, and when their road* separated at the further •ad of the Gorge witness went with him a little way to give him a start on the right road to the Forks, -whera prisoner lived. Though Cheyne was drunk he was able to take care of himself. Richard Baker, a contractor, the " man on foot," stated that he b»w the last witness and tbe prisoner leave Waitnate together about eleven o'clock, and he started soon after on foot, to go to his home at Waihao Forks, In the Gorge be met Myers on horseback, who appeared to be excited, and did not reply to bis " Good night." Further on be met Cheyne, whom ho knew, leading a horse with harness od. Cheyne had had sjme drinks, but was not so drunk but that he knew what he wai doing. Cheyne asked where he was going, and then told him to " hold on," he wanted some money. (The witness was then stopped, his evidence tendingto prove another offence ) They bad a sort of row, during which the prisoner said he had a revolver, and pulled something out of his pocket, but what it was ha could not say. While they were quarrelling Myers ar.d twt other men named Anaon and Gowdie cami up. Myers asked Cheyne to give him bil hovae, and Cheyne said he would' not, hi would fight him first, and he struck him on< blow. Witness interfored, and the prisonc: rushed at him,- and witness knocked hia down. That ieemid to sober him, and hi floon after went away. John Anson, ouo of the two men whocami up on horseback as described above, state; (hat. he asked tbe prisoner why be hid stag!

up the old man, and prisoner asked what he had to do with it. Witness rode on a few yards, and the prisoner followed him and told him to ftop. He said he would not slop for him, and prisoner then drew fome thing from his pnrket and said ho would "put him down" if ho did net. He then stopped und went Va~k to the others. This concluded the ease for the prosecution. Mr Hamewley said he had no witnesres to call. His Honor said he did not think that there was sufficient evidence lha'. prisoner was armed, but his own 6talunents that he had a revolver or revolvers was evidence ngaimt him, and he would let it go to the jury. A good deal of discussion took place between Hii Honor and the Crown Prosecutor as to whether the jury could find a verdict of guilty on the first count if they did not find the man was armed, as alleged in the count, Bis Honor finally ruling that they might do so. Mr Hamersley then addreseod the jury, arguing that the affair was merely a drunken freak. Drunkenness, he admitted, was no excuse for crime, but if no crime was committed, aud no robbery wag provod, tho drunkenness would stand alone. The prisoner did not press his demand for money, as ha would have done if he had been in earnest, and the whole of the surrounding circumstances showed that it was i» raero drunken spree. He could say that the prisoner hud no revolver at the time, and could not remember what ho said or did. A* to tho second count, the common assault, be admitted that was proved, but that was a n.ere trifle. His Honor in summing up told the jury they could find one of threa verdicts — that prisoner was guilty generally, which they ought not to do if there was not sufficient, evidence of his being armed ; that he was guilty of an assault with intent to rob, w-.t'i-out aroiß ; or they might find him guilty on the second count of a common a-snult. Whatever the real state of the case was, as to the man being armed, there was no doubt whatever that Myers was put in bodily fear. As to his state of drunkenness, the prisoner appeared to have been just in that state when men are most likely to do mischief; — to have had enougU to allow him to commit mischief and not enough to make him incapable of it. The only evidence in support of the first count was that of Myers, the rest was merely corroborative, and if the jury believed that tho prisoner had ordered him to stand and give up his money, had told him he had revolvers, and had drawn something from his pocket, that evidence was sufficient to constitute an asiault with intent to rob, in law and. common sense. There was violence, putting in bodily fear, a demand for money, and an attempt at display to enforce the threats ; it did not signify whether the man had any money or not, they could find assault with intent to rob on that. The evidence as to the armiDg showed that there was so much rhodomontado about the halfdrunken maii : — he had " four " revolvers — that it would not be fair to believe his own statements against himself; probably he had no revolver at all. Evidently, however, his object was to pass himself off for a highwayman, — he was " Dick Turpin." It might be suggested that be was only playing a very bad joke, but his actions were very like those of a> real highwayman, and tho jury would have to say whether the transaction was or was not substantially real. The jury, without retiring, returned, a verdict of not guilty on the first count ; guilty on the second. No evidence wes offered on the second indictment, and a formal acquittal was recorded upon it. His Honor remarked as this indictment referred to tbo eacne transaction, it must have failed. In reply to His Honor, Impector Broham stated that the prisoner had only been at Waimate about a fortnight bafore this occurrence, aud bora a good character where be came from. His Honor told the prisoner be had had a very narrow escape. He thought the jury would have been perfectly justified in finding him guilty of assault with intent to rob, and he supposed they brought in the les;er verdict because they did not think it a very bad case of the other kind. If he had taken a penny piece from the man, or if he had been found to have had a knife or revolver, he would hnvo made himself liable to penal servitude for life. In a oountry like this it would not do to allow people to play the highwayman, call themselves Dick Turpins and bo on ; that sjrt of thing must bo put down with a high hand. The maximum penalty for common assault was twelve months' hard labor, and he would take into account tho five months tho prisoner had been in custody, and give him the residue of the full term — soven calendar months, with hard labor. That was the very least punishment that could be justified, as it wee a case very near being a very had oaße. If men were lo get drunk and go playing Diok Turpin, they would not have to go much further to find themselves with a noose round their neck. This concluded the criminal business, and the jurors were dismissed with tho tbanks of the Queen and colony for their services. Tho Court was then adjourned, at 12.20 p.m., till 10 a.m. on Tuesday.