SUPREME COURT SITTINGS.

West Coast Times, Issue 4278, 5 April 1883, Page 2

SUPREME COURT SITTINGS.

CRIMINAL JURISDICTION.

(Before his Honor the Chief Justice.)

Wednesday, April 4.

His Honor took his seat on the Bench at 10 a.m.

The charge against James Wylde was resumed.

William Nicholson, accountant, examined by the Crown Prosecutor, said — I remember a peition for a special audit be'ng taken round Xumara; after the first petition had baen sent to Wellington, I heard the prisoner ask a man, named M'Lellan, if he hid any objection to withdraw his name from the petition; M'Lellan said he had ; the prisoner said it would be injurious to him if it got into the papers that a speciil audit was required, and that he had friends in Wellington and Christchurch; M'Lellan did not withdraw his name ; this conversation took place at an election where prisoner was acting as Town Clerk, a"d I was poll clerk; George Stewart, the bootmaker, was asked to withdraw his name; he did so; James Home was asked at the same election, as was also Johnson ; I remember a case against the accused at the R.M. Court, Kumara; I was one of the Borough Auditors ; I asked prisoner where the missing she2ts of the ledger were ; he said it did not matter, it could easily be accounted for; I did notice the sheets missing when I made the audit; I noticed foine contracts had been let; we told the prisoner we ought to see the contract?; this was when we made the audit; I only knew afterwards about contractors' deposits.

To Mr Guinness : I have never noticed these deposits piz-s through the borough accounts since I have been auditor. I cannot swear thai the leaves were out of the ledger when we made our audit; the condition of the book now shows that some leaves have been torn out ; the leaves of the cash book, numbered 56 to 68, are missing. The petition for a special audit was initiated by a man named bimmonds ; I believe prisoner took proceedings against Simmonvis to oust him from his seat in the Kumara Borough Co incil. Re-examined by Mr Perkins; It would he easy, if leaves in the books were torn out, to make fresh »;ntries; at page 71 in the cash book, some alterations have been made.

William Barnefcfc said— l am Miyor of Kumara ; I have been a councillor for two yea r s. I recollect a special audit being made ; I took the second petition round ; I iskcd the prisoner to sign it himself • he would not f-ign it. Whm the report was received, a committee was appointed to enquire into the repirt ; tha prisoner gave ua m sati-factory explanation; I told him I would not stay on the committee, as the prisoner occupied the time by attacking he then Mayor (Mr O Hagan); I waited on prisoner substquen r ly, and asked him to explain about the deposits ; he said that as proceedings had beet taken against him in Keeunn's case, he was in the bands of his s licitor.

To Mr Guinne.-s: When the committee met, the prisoner asked that his statement mi^bt be taken down in writing. There •vas some discussion between the Mayor aad Mr S.ddou at the meeting. I was present on the evening that the prisoner handed over to the Council his office keys; The Mayor said he approved of the prisoner's resigning ; in December last, I oaid the prisoner £5 4s 6J, according to resolu 1 ion of the council ; I paid him by my private cheque, because he said he was •n want of money.

His Honor said they were wandering from the charge, which was that of stealing cheques. John O'Hagan,, re-caUed, said— l took charge of the keys when the prisoner resigued; there was no moaey left in the safe.

The Crown Prosecutor said that the case for the Crown was now closed. 1 There were other witnesses subpoenaed, and if the defence desired ir, they could be called.

For the defence, Mr Guinness called the following witnesses :— Richard John Seddon, who said— l am a member of the Bor mgh Council. While I was Mayor in 1878 or 1879, some tenders were being opened at a meeting of the Council, when the prisoner asked what he was to do with the deposit moneys ; the instructions were, that he was to retain the deposits of the sacces ful tenderers, and return those of unsuccessful tenderers ; | had the deposits been paid into the bank, they would have been impounded ; this lias always been the practice in the Kumara Council. I reciliecfc when Mr O'Hagan was elected to the office of councillor ; during that gentleman's term of office as Mayor, prior to 6th October, 1881, I met Mr O'Hagan and asked him what the grievance was between him and the prisoner. Mr O'Hagan said the prisoner had insnlted him, and he would make him too the mark ; Mr O'Hagan also said he would put him out of his situation altogether; I was present in the Kumara Council on the 6th November last ; Mr O'Hagan said he had advised the prisoner to resign temporarily ; I was a member of the eomn.itfcee appointed to consider the special auditors' report. We commenced our enquiry on the evening of 9th November; the prisoner was present 1 and asked that his stttements might be taken down in writing ; he wa9 proceeding to mike his statement, when he was in* te rapted^by some of the councillors, who held that the on y question was whether the prisoner should be prosecuted, or proceeded against by civil action. The prisoner bad not ten minutes to explain. His Honor sa<d one wituess had led the Court to the impression tbat Mr Seddon hid a good deal to do with the discussion. (Laughter), Witness continued— The appointment of the committee was cancelled subsequently and the matter referred to the Borough Solicitor. I saw the petition for the special audit ; four names were forgedj and some of the signatories were not ratepayers. I received the petition from the Minister of Justice and reported on it.

To Mr Harper : I do not recollect the date whtn the instructions were given to the prisoner not to pay deposit moneys to the Bank. I do not think the prisoner was instructed not to enter the deposits in any book. The prisoner kept his deposit money in a cash box in the safe. I know Whelan, Keenan, and Murtha had cmtracts with the Council. I saw the special auditors report as published in the paper before the meeting of the Council on the 10th November. I know its contents, I am a relation to the Mr Seddon referred to in the auditors' report ; I went through the books on my own account; I am - certain that the auditors are wrong. The amount stated as overpaid to Seddon is not correct. Seddon has been paid what was due to him. He received all the moneys himself. The document pro* duet* i» an orcltr from Nathan Seddon to;

Mr Wylde to pay all moneys' coming to him to me.

William Emerson, police sergeant, said — I was present at the Town Hall, Kumara, when the prisoner resigned his appointment as Town Clerk ; Mr O'Hagan stated that he had advised prisoner to resign. Alfred Skilton, Town Clerk of the Borough of Kumara, said — I was present at a committee meeting of the Council held respecting the special auditors* report; I took down in writing the prisoner's statement on that occasion ; I have not got the minutes of that meeting nor the prisoner's statement; I have looked for them ; I looked last night, but I could not find them ; I could not say when I caw them last ; I did not des roy them.

To Mr Perkins: I went back to Kuraara to search for these documents, but I could not find them ; there wa9 very little explanation given at all ; the prisoner said he would explain at tbe proper time. Alexauder Campbel 1 , member of the Kumara Borough Council, said— l was present at the meeting when the prisoner resigned ; Mr O'Hagan reported that tbe prisoner was resigning through the advice tendered to him. The evidence of this witness concluded the ca«e for the defence. Mr Guinness then addressed the jury at considerable length. He referred to his Honor's ruling that the prisoner could not be convicted of embezzlement.

His Honor said the counsel need not address the jury on the charge of embezzlement. The Crown had abandoned that charge, and aUced larceny. Mr Guinness ?aid the Crown had failed on the indictment for embezzlement, and it was left to thu jury to say whether they were justified in falling back upin the alternative charge of larceny. He drew the attention of the jury to the Statute giving the Crown power to charge h\s c'ient with lnrceny as well as with embezzlement. The section was th'it if a person was indicted (or embezzlement, he mi^ht if tho facts showed it, be convicted fur simple larceny. „t was for the jury to say whether the prisoner was guilty of 1 >rceny. Although, upon these same facts, the piiFoner, if acquitted of embezzlement, conld not be tried again for simple larceny, he might be tiied again for larceny as a bailee. The Crown had charged that the moneys were stolen on the dates that the deposits were paid to the con raetors. The prisoner could not be convicied of scaling a cheque and of stealing money too. Mr Guinuess concluded a long address by contending that thee was nothing to show in any of the books how the contractors were paid their deposits ; there was nothing to show the deposits were paid out of the Borough funds. He submitted that this wa3 aca-e where money was handed to the piisoneto be repaid to tbe contractor?, but there was noitiing to thow that the money bad been misappropiiated by the prisoner. The fact of drawing a ch-que for an amount larger than the tender, was not a proof that a deposit was included in it. If there was anythiDg in the case, it was a mere mistake or error, probable enough when the prisoner held eight offices in the B»roujjb, and wa=i allowed private practice besides. The fact that the prisoner was ordered to retain these deposits in his custody, was proof that it was not considered neces ary to enter them in any book. Was it likely that for a paltry few pounds the prisoner would jeopardize his position. This money would have been p-ud at once if any explanation had been allowed. The Mayor (Mr O'Hagan) prevented any explanation. Mr O'Uagau't evidence was not reliable, and if the prisoner could give evidence he would show that much of Mr O'Hagan's evidence was fabucated. There was no false statement made by the prisoner about these deposits. He asked tbe jury where there was any evidence to show that the prisoner attempted to conceal any fraud. There was a majority in the Kumara Council who determined to shut the mouth of the prisoner by proceeding against him criminally. Mr Harper paid the Crown were bound to show that the facts amounted to larceny. One of the ingredients of larceny was feloniously taking at some time or another. The distinction between embezzlement and larceny was very slight. In the first instance, the Crown framed advisably an indictment for embezzlement. During the trial, it appeared that technically the prisoner had not been guilty of- embezzlement, as the Council received the deposits first and handed them to the prisoner. After the date of tbe acceptance of Murtha's tender the prisoner received £5 deposit from the tenderer. During the progress of the tender, moneys were paid out and a final payment made including the deposit. The Crown produced Murtha's receipts, and Murtha himself swore that he got his deposit back. The counsel then proceeded to point out the strong evidence of larceny of the three deposits, and reviewed tbe circumstances under which the prisoner, as the Crown contended, had fraudulently mis-appropriated these moneys. He concluded a remarkably clear and able speech by contending that tbe evidence of mis-appropriation by the prisoner was convincing of his guilt. He defended Mr O'Hagan from the attacks of the counsel for the defence, although Mr O'Hagan's actions did not really matter one bit. He asked the jury to consider the reception of the deposits by the prisoner, his retention of them, and his repaying them out of the Council's money. Hit Honor summed up briefly.

The jury retired at hslf past three and returned to Court at half-past four, with a verdict of not i»oi ty of embezzlement; guilty of larceny on three counts, as cleik of the Corporation, with a rt commendation to mercy on account of the loose way in wbch the books of the Corporation were kept. Sentence was deferred until to-morrow. The Court, adjourned until ten next (this) morning.