SUPREME COURT.

Wellington Independent, Volume XVI, Issue 1452, 7 September 1860, Page 3

SUPREME COURT.

SATURDAY, SEPTEMBER I, 1860.

The Criminal Sessions of this Court commenced as above.

Hrs Honor M"n. Justice Johnstone (the Resident Puisne Judge) presided.

After the usual preliminaries had been gone through, the following gentlemen were sworn as Grand Jurors, viz.,~R. Stokes, Esq., M.P.0., (foreman) E. Battersl.ee, Win. Bowler, M.P.C., Esq, on the ground of ill health.

His Honor then proceeded to deliver the following able and eloqnent Charge to the Grand Jury : —

Mr. Foreman, and Gentlemen of the Grand

Jury for the Middle district of New Zealand ; At the present critical conjucture in the history of this Colony, there are perhaps few things which will strike the careful and reflecting observer of passing events, more forcibly than the very evident importance and necessity of demonstrating to both of the races by whom these Islands are peopled, on all proper occasions, and by all legitimate means, that the Sovereignty of the British Crown, while it carries with it the power to vindicate its own honour, and enforce respect and obedience from its subjects, brings with it also the sacred attribute of justice, and is able, and zealously anxious, to maintain the rights of tho3e subjects, to secure their liberties, and protect thoin against every species of violence and fraud.

|v The ■contemplation of a Legislature, striving by carefur.investigation into the wants and requiramfeuts of both races, to arrive at a right judgment on great questions of public policy, and to prepare themselves for making wise laws for the safety, honour and welfare of Sovereign and people, naturally excites auspicious expectations of future social 'prosperity ; but the assuraneejof well being will be greatly increased if we see throughout the land accessible tribunals for both races, in which justice is administered with punctual regularity, temperate firmness, and unsuspected impartiality. Such is the cause, Gentlemen, why those our regular meetings for the discharge of our respective functions in the administration of the most important branch of the Law, are invested with an importance and dignity not to be measured by the number of tho cases, or the gravity of any one of them in particular.

No one of the cases with which we have todeal today is of an exceptional or specially important character; and yet they present some circumstances suggestive of matters of principle, which cannot be too often or too strenuously forced upon public attention.

You will bear with me, Gentlemen, for this reason, if I advert fora brief space, to some general principles, which, though probably nearly as familiar to many of you as to myself, may not have occupied the serious and sustained attention of others ; but which, it is essential to the right understanding and judgment of many very ordinary occurrences in courts of justice to ascertain definitely and appreciate fully.

The object of all Criminal law is to protect and secure life, person, property and character, from violence and fraud.

That object is to be attained by the prevention of offences.

The prevention of offences is aimed at by various means of veiy different kinds ; such as religious and moral instruction, general education, removal of temptations by measures of police, public vigilance, certainty of detection, of prosecution and of punishment, and the fear thereby engendered. To the best of all preventives of crime, the love and fear of God and the desire to obey his will, it is the duty and prerogative of othera, more fit, specially to advert and appeal. The cultivation of the moral sense, and its preservation in purity and activity (-seldom, indeed, to be found dissociated from religion-) which is the highest and noblest object next to religion, of all education, must ever be i thief safeguard against crime, But even secular and merely intellectual or industrial education, is unquestionably a gi\jat preventive of crime ; and operates in various Avays. It is the tendency of all knowledge to make men entertain more wholesome respect for themselves ; and to make them care more for the respect of the worthy among their neighbours; thereby making more formidable and grievous the forfeitures, which necessarily must follow of the former, on the commission of a crime, and of the latter, on its detection. The possession of intellectual resources, moreover, produces beneficial effects on the temper, disposition, and affections ; it enlarges the views, gives breadth and depth to the sympathies of men with their fellows : and even if it does not directly contribute to the success of the possessor in his particular vocation or career, it affords relaxation after his labours, solace in his troubles, wholesome amusement for his leisure timo — withdrawing him from various temptations which might else over power him ; and thus does it act as an admirable preventive of crime.

Butit is not merely intellectual knowledge which is or ought to be obtained by education. There are also habits of self-restraint, of obedience to authority and principle, habits] regulative of conduct towards others, habit 3 respecting the distribution of time, and applying means to ends, besides the love of truth justice and fair play which ought to be assiduously and carefully cultivated in all wise systems of education.

It is not everything, however, that is called education that can bo reckoned a preventive of crime. There is a knowledge wllfch " puffeth up" and produces no good fruit ; and a little knowledge which is a dangerous thing. In a young society like that 'of this Colony, nothing can be of higher importance — not merely as viewed from the point of view from which I am at present looking, _ than from many others— than securing to the rising generation, education based on sound principles, conducted with knowledge and discretion, and persevered in for a sufficiently long period of each learners youth: Of what real use to a community like this will be the wealth which industry and enterprise may attain — or the political and social rights they have acquired^ — if those for whose sakes they chiefly value those possessions be allowed to^grow up either ignorant, or mis educated, or insufficiently educated.. It is their truest interest and duty to see that there are schools enough — and education therein of the best attainable character and class — and to keep their children there long enough to dorive substantial benefit and advantage for their future lives. Eleo our education will not make worthy citizens for a future day, and will scarcely assist materially in the prevention of crime.

In the last Education Report in England, I find one of the Inspectors of Government schools, stating that the children of labourers who disappear from the schools about the age of 10, " get a smattering,of several things and proficiency in none, not even in reading and writing." Such an education will hardly help to keep down crime. The right kind of education will be such as will enable youth to do that which a venerable sage, long the ornament of the British Bar, Bench, and Senate, a master of all literature and science, himself an Encyclopaedia of knowledge,-as diatinguised in the cauue of education as in the vindication of the rights and liberties of mankind,-in ■ the course of a recent splendid oration, worthy of his world wide fume, recommended most emphatically and pre-eminently to the youth of Scotland, namely, to employ carefully their spare minutes, as they may be sure the hours will take care of themselves, and to learn whatever they do learn, however little, thoroughly and perfectly. That is the aort of education not only to keep men from crime, but also to make tham happy and useful.

And here I must refer to one, far away the greatest source of all crime, namely intoxication ; a vice which the cultivation of the intellect, together with the careful use of leisure time, may tend to remove. I believe 1 may say, that during a very extensive acquaintance with Criminal

Courts for nearly twenty years, in a majority of the Criminal cases I have seen tried, either the person accused or the person injured had been in a state of intoxication more or less advanced, at the time of the offence ; and I believ6 you will find to-day, in our short calendar, that some of the offences are directly or indirectly attributable to this cause. Whether this vice be more or less prevalent here than at home, I have no means of ascertaining. But every inducement thnt can be used to restrain the community from its indul g'ence, ought to be constantly made use, of. The cultivation of letters and tho arts an I sciences, ought sedulously to be fostered a-! avocations for time unoccupied by the ordinary business of life ; and innocent and rational recreations will be no mean assistants in the same direction.

The preventives of crime which I have hitherto noticed refer to the condition of the mind, disposition, and character of the people. But inasmuch a 9 in no society of frail fallible being, can wisdom and knowledge and prudence and care eradicate vice, or prevent men from desiring to do wrong to their neighbours, other preventives must be used ; of which the first are those winch tend to make it difficult to commit offences, — wise precautions by individuals for the protection of their persons and property, but especially, police regulations and police vigilance. The glory of a good system of police should bs not in a multitude of penal laws and of detections and convictions, but in such a perfection of watchfulness and precautionary skill, as to reduce the opportunities for commiting offences to the ihiniv.vm.

And now I come to that preventive of crimg with which you and I to-day have principally and specially to do, namely ' tho administration of the Criminal Law for tha punishment of offenders, a subject on which it is as desirable that precise, dennito,and sound opinions should be entertained, as it is usual to find the most vague, indefinite, and erroneous impressions prevailiuir. The right of Society — of the State— to punish offenders ia derived from the natural right of self defence ; the object for which it ought to bs used in every civilized community, is simply andjsolely the prevention of crime.

It ought not to bo used for purposes of revenge, or compensation, or retribution. The conduct of tho State in awarding punishment to offenders is neither like nor analagous to the conduct of the Moral Government of the Universe by the Almighty. The moral wickedness of the offender is not the measure of his offence against society, but the inconvenience which the offence- creates to society ; and punishment is inflicted not so much un account of the mere guilt, as with a view to prevent tho offender from offending again, and to prevent all others from offending in a similar way by the fear of Buffering- like punishment.

2s T ow tha offender himself may be prevented from offending again, by one or other or both of two processes, the one, oorractive, the other-afflic-tive.

Tho corrective process is the one which as regards the offender himself, is the most desirable and useful. The object of it is to bring him by uiectpl'ne, precept and education to repent of his offences, to change his habits and feelings, and to restore him to society, either with a disposition and mind so changed that he does not desire, or with a judgmont so trained to self-control that he he can overcome the temptation, to offend again.

The afflictive process is one which makes deprivation of liberty, enforced labour, absence of former cherished indulgences, seclusion from former associates, the regularity and monotony of occupation, so painful and galling, that after the offender was returned to tho outer world, the remembrance of the inconvenience and suffering to wiiich he was formerly exposed deter him from doing that which he feels mire, or fears, will bring upon him an increased measure of such suffering and inconvenience. And I may say, in passing, that although a wise system of punishment and prison discipline recognizes the principle of making useful punishment as humane as possible, never ignoring that offenders are fellow men often deserving pity as well as punishment, and in whose breasts 'it would be inhuman to annihilate that hope which will still spring up within them ; yet nothing can be moreob-strnctivotoand destructive of the true objects of punishment bo',h for tho offenders and for society, than indulgences or relaxation of discipline from, motives of mere sontimentalism or good nature undisciplined by principle. I need not say that merely capricious indulgence or rigour would be something far worse than weakness.

Now, it is to be remarked, in the first place, that the corrective process alone, unless it partake of the afflictive character also, can only operate to prevent the one offender from committing future offences, and cannot operate as a deterring warning to others. And, in tha n«xt place, it must not be forgotten that it would be a complete perversion of the institution of a system of punishment to make its object the correction of offenders.

The correction of offenders is but a means — though a most important one — of attaining the end of the institution — the prevention of offences.

I believe that all wise and salutary punishment ought to partake of the character of both processes ; and that it depends on age, class and other circumstances of the offender ami the offence whether the one or tho other be the predominant.

Although with respect to adult offenders — • especially after several convictions, or when they have belonged to the normal Criminal classes, — the painful experience of years of philanthropic struggle and endeavour establishes, with too much certainty, that cases of successful correction, and permanent reformation, are rare ; yet I would say " God forbid that anywhere, where English law and rule prevail, there should be wanting tho desire and the means to promote such endeavours."

In every prison, habits of industry, regularity and self restraint at all events ought to be generated ; and through the use of them, many incitelnents^tojerror, at all events, may be got rid of. The great stumbling block — the prime difficulty in the way of perfect reformation — is the procuring of permanent employment for offenders after the expiriation of their sentences, without fear of ro cognition by and association with other Criminals. Of schemes for securing that object, I may have an opportunity of speaking at another time. But if, the reformation of adult and confirmed Criminals be a work of so great difficulty, and the labour bestowed on it bo so great in proportion to the result, this is by no means the case with respect to juvenile offenders. It is a charge preferred against two such persons — mere children, which will come before you to-day, that has suggested to my mind the propriaty of going so much at large into these matters. The last and j most successful efforts of philanthropists both in J England and the Continent of Europe have been directed to the reformation of juvenile offenders : — to the rescuing of children who would otherwise have been necessarily doomed to a life of crime, necessarily and inevitably compelled to pursue the paths of guilt as their ordinary and normal career ; — to their education and training in habits of industry, and their establishment in a career of honesty and usefulness. At Mettray in France, at Red Hill near lleigato, in the West Riding of Yorkshire, and in various other places in England, industrial establishments have been instituted in the course of the last 10 or 12 years for this noble purpose ; and I believe there is little reason for doubting that, under God's blessing, they have been eminently successful. Indeed we have heard of private , men — humble tradesmen, or artificers, who have in a narrow sphere, but with the largest hearts, — dedicated themselves to this truly Christian work ; and I devoutly trust and pray that when the need for similar instituions in this new and highly favoured country, becomes manifest, society will recognise the duty — I may call it — the privilege of imitating ho worthy examples. lam not sure that the necessity has not already risen in this Colony ; but probably it might be deemed premature to imitate any institution, for this

specific purpose till the matter of a General Convict establishment has been fairly dealt with.

I may observe that tho present policy in England is to force the parents of Children sent to reformatory establishments to contribute to the expences of their maintenance according their ability.

With this c\t 3 3 of penal offetvleH the auT.ctive element may be reduced to the minimum.

If the two processes which I have so often mentioned, be, in, my opinion, in ordiu- r/ c-^es and especially •with respect to adults, — desiralil.j if not indispensable, I need hardly say what I should think of a system of punishments in whic'i neither was effectually applied, — where neither the corrective nor the "afflictive principle had any real operation, and the so-called punishment amounted to no more tban a slight restraint on liberty. A punishment which is not substantial, and substantially felt, which, in tine, des not punish — is a mischievous delusion, a silly sham.

Now, you must not suppose that I am intimating a belief that punishments as now indicted in the prison, of this province, are open to such a censure — at least, to its full, or to any great extent. I believe something has beon doneieiently, and I hopo moc will yet be done in the right direction. Ifo symptons of anxiety on the part of Uie authorities to do the bast which present circumslSnces will permit with respect to the matter; and I sec them with satisfaction and hopo; but I feel const ained by a .strong sense of duty an.l responsibility to speak aloud on these topics, and not to spare words of warning, caution, and nddje, fjr fear of vufHlng tho feeling:) even of the uio.-st worthy of my neighbours.

In orJer duly to exorcise t!i3 large discretion vested in Judges by the law, a 5! to t'aa amount of punishmout. feu be awarded to offenders, I am' obliged to see how punishments are enforced, and to net upon fixed delinito governing principles, refdreneo being had to the male and means of" enforcing the itenco-i. The discretion which is yo largely beitowvd on all the Magistrates, from the lo\vo-.t to the highest, is a sacra I trust which the y are bound to us 3 under Iho guidance of reason and principle ; and that Magistrate who could notgivo to his conscience, s^me good aii:l definite reason for the quantum of punishment on which he determines, and who acts therein under ever so little influence of caprice, foaling, or prejudice, to my mind, betrays that trust.

Let us all then, gentlemen, with the view of preventing the growth of crimo, use our best endeavours, in our respective spheres, to promote tho interestsiof religion and moral.-), tha spread of sound and useful education, the cultivation of a taste for letters and liberal arts, and tho introduction of wholesome recreations for the community. Let us nt the same time see that we have a vigilant police, so that tho commission of crime ' .shall be difficult, and its detection certain; let us by wise arrangements secure certainty in prosecuting offenders, ho that certaiucouviction may follow on certain discovery; let us sco that our punishment of offences are substantial, implying both suffering and degradation, so that they may prevent both the punished, and the re^t of society from committing similar offences ; but let us not be dismayed by difficulties from procuring and promoting all such means of correction and reformation as may be most desirable, especially in the more hopeful eases of young offenders. If radical changes and an entirely new system be necessary, —^let ua do our best to procure them. After some few further comments by His Honor on the cases that would be presented for their consideration the Grand Jury rctiied, and in the course of the day returned into Court with findings as Pillows, in the cases of ■ ftegiuu v White, Falony, a true Bill. „ v Messer „ „ „ „ vJ. Smith, Larceny „ „ v James Q'linty and W. Ilaivluastle felony. Tha Grand Jury ignored this Bill. These cases comprising ,the whole of the calendar the Grand Juiy were courteously thanked by the court and dismissed. Tlie Gentlemen of the Petit Juries having j answered to their names, the following cash of FISt.ONY was disposed of, R. H.urr, Esquire, acting as Crown Prosecutor. Thomas Messer was placed at the bar charged with having ..stolen a box containing certain articles of a value exceeding £20, fiom the house of Robert Jillett, at the Hutt, the same being the property of one Thomas lladsrerscm, a fellow servant with the prisoner in Mr. Jillett's employment. The panel pleaded "g-uilty" and in a most feeling address from the Bench, (in which his Honor took occasion again to warn against the baneful effects of intoxicating drink, which he firmly believed was the origin of most crime) he was sentenced to nine mmths imprisonment and hard labour. Labceny Joseph Smith was next indicted, th it he did on the 14th day of August last, steal from the person of one \Vilh'am Henry Fitzgerald, sundry monies of the \alue of ton shillings, and other articles, to wit, uamely. I pair of sleeves, 1 skein of silk, a pocket handkerchief, a watch guard and seal attached, a bottle of scent, a meerscham pipe, and one pocket k.nife. The prisoner pleaded " not guilty," and was undefended by Counsel. The facts of the case, as stated by Mr. Hart, are briefly these. It seems that the prosecutor on the evening of the day in question, was in tho Nag's head public house, and on leaving there was followed by the prisoner, when on overtaking the prosecutor, a conversation ensued, in the course of which, in answer to a request of that nature, prisoner promised to conduct prosecutor to a certain house, but in ■ stead of so doing he took him to bis o-.vn. On their road thither, took prosecutor by the arm, and during their walk prosecutor distinctly swore that they met no one, and- that he had the articles on his person. Oil arriving at the hut (for house it couid not be called) prosecutor went fast asleep, being overcome by liquor, and on rising next morning missed his money and the articles enumerated and his pocket was cut | across. He gave information to the police, and a few hours after met the prisoner again in the bar of the public l.ousc, he told prisoner of his loss, who told him in return that if he would send the polieem in away, he (tho prisoner) would find the things he (the prosecutor) had lost. This was of course refused, and he was immediately apprehended. The pipe, one of the articles stolen, was dropped during this interview, in the bar of the public house named, and evidently from the person of the prisoner, and eventually the handkerchief and other articles were found in the hut were the prosecutor slept. This was all borne out in evidence, clearly and distinctly, and notwithstanding the groat tact displayed by the prisoner in his cross, examination of the prosecutor and other wit nesses, and the ingenuity of his defence, tho Jury, after his Honor bad carefully summed up the facts of the case, found him guilty. A previous conviction was proved against the prisoner, and bis Honor, in passing sentence, observe, that such men as the prisoner weie the worst enemies of society, tht:ir great natural abilities, when perverted, making them more dangerous, and tending greatly to the formation amongst us of criminals, The sentence be was about to pronounca was as lenient as the Court, considering the prisoner's previous career, daro award, and that was that he (the prisoner) hould be kept in penal servitude for the tpa.ee of our years.

The two buy, Junes Quint-/ and William [Ith'fl castle, (of 1 1 and 13 years of age, and tbo former of whom was the step-so?] of the last prisoner), against whom the Grand Jury h;ul found no bill, were discharged by procla'nation, his Honor cautioning them as to their future conduct, and giving the police injunctions | to exercise a strict supervision with regard to them. Fkt.on'Y. /Hd'i'ard TJ r /«'/» wi« thmi p'-in^'l at the bur chained with li :i vt:i of on tie }?th ii.iv nf .July l.isl. feloniously st den, tsik<»n and carried nwiy from the dwelling hous^ of WHlmmi Mercer, tiilor, Lamhton-nuav, viriuus bank notes of the value of .£24, and n second indictment charged the prisoner with having on the same date, from the same premises, stolen a silk neck handkerchief of the value of five shillings, the property of one William Beity. The prisoner pleaded not guilty, and was not tepresented by counsel. Mr. Habt briefly stated the case to the Jury and proceeded to call the following evidence: — William Mercer being duly sworn, stated — I am a tailor residing on Lnmbton-quay ; I . know the prisoner, on the 17th of last July he was in my house, and liai been so off aud on •lor the last six months ; he had not been doing anything f<«r three weeks im nediately preceeding that date ; and the anterior three weeks he had been employed at the Unit and received 10s. a week an. l his boaul. On the date in question he left my house in ths morning", with die intention as he said of going to the Hutt, and seeking for employment; he returned about three o'clock in thi." afternoon* and said he hud got a jab for t'.ie Monday- following. On expressing my surprise that he had vet'ivned so early, he said ho had got a lift in a cart on his way back. J then went into the shop to work, and about an hour afterwards I heard him go upstairs into my bed room, immediately over the shop ; thore whs no person in the house at tluit liire except my wife and children. Ha was about 10 minutes. in the bed room, and a favy minutes after, I saw him inn by the shop window in tlu direction of Noah's Ark. He did uot return. On next day I missed the money which had been in a b)X in a drawer in my. iooa> ; the oux was locked, the drawer was not; there were three £5 notes of the Union Bank, aud nine £1 notes of the Oriental B.mk in tho box; when I went to the drawer the box was still lucked, but the money gone; I swear it was there on the 17th, as I had it in my band a tew hours previous to when the prisoner was there. Between that date and the next day, no one but my wife and self went into tho bed room, I swear this, the prisoner hid no right, to ga there. After I s.i\v the prisoner run bye as described, 1 did not see him again until he was brought back on Saturday last by the mail steamer. When I saw the handkerchief produced on his neck, I recog nised it immediately as belonging to one William Betty, a person who had been also lodging wilh me, and had slept in the same room with the prisoner on the 17lh ; it was hanging on a nail behind the door of the room wei\s they slept ; Batty has gone to Australia; thu prisoner when he left owed me a trifling amount for lodging, candles, aud food; and had promised to pay me when he had got work to do. By ('it C')ui-t—The key of the box was hanging with a bunch of keys att.tched to a padlock hinging fiviai a door, w'lioli sepir.tted the I) w.({ v> m from the suop, they ould be takiMi without my seeing it. Prisoner never told ma lie was going to leave. By ihe P,->s:»i'jr — 3uity. never told me he had given you a handkerchief, .0:1 the contrary, ho CMipUiiied that you hud stolen a black silk han-lerchief a:id a pair of braces. Mary Anne More or, the wife oP laqt witness, fully corroborated the evidence of Mr. Mercer. R. S. Lo iger, the A-yent of the I. C. 11. M. Company, testified as to one steerage passage having been taken for Nelson in the steamer on thu 17th July, and psid for in three jGI Oriental B ink notes, but could not swear as to the prisoner being ths party who had engaged the same, the passage was taken in the name of ijreen. Evidence was next given as to the appfehen sion of the prisoner by the Corporal of Police, and his wearing at that time the handkerchiefs in question. The prisoner made a rambling defence, and after his ftoiur had, with his usual perspicuity, siimmsd up the facts of the case, the. Jury returned a verdict of guilty, but recommended the mis.Mier to mercy on account of his youth. The prisoner, in reply to a question from the Court, stated Ins age t ) be 22. His Honor in passing sentence said, although he was anxious always to attend to the reco.nmendations of the Jury, yet if a m%n was not honest at prisoner's age, it was rather improbable that he would become so ; at any rate the prisoner had been guilty of a very serious crime, so serious that he doubted much whether this was his fust dishonest act. Th«j sentence he was about to pass was very lenieut, and he sincerely hoped that the morcy shewn him now, would act as a salutary warning for the future ; and that wis. that he be inwhmed and kept to hard labour for nine calendsr months. This being the. last case for disposal, the Court adjourned to the Bth instant, when it will proceed to tiy civil cases.