SUPREME COURT.

Auckland Chronicle and New Zealand Colonist, Volume 2, Issue 57, 5 September 1844, Page 3

SUPREME COURT.

Monday Sept, «, 1844. This morning the Court opened at ten o'Clock, shortly after His Honour, the Chief Justic, took his seat on the bench. The Court was very thinly attended as there were only three cases for trvl, and neither of them was of any great importance; viz;—Stewart and L j wis for sheep stealing ; Fagan (alias Tommy the Shingler) and Booth for bouse breaking, and Dowie for larceny. The grand jury having been sworn, His Honor the Chief Justice, saidGentlemen of the Giand Jury, TheCalendarcontains three charges of felony, and the persons now in custody on one or other of these charges are five in number. I regret to say that one of these charges i« the very serious one of sheep stealing. There appears to he nothing in these cases to call lor any lemaik from me, with tbeexc<plion of one point. I see that one ol the act used is stated to have been already on a former occasion conv-ipJed of felony. When a Bill shall be preferred <o you against that prisoner, the Bill will probably be in the usual will contain an allegation* of that former conviction. And if that piisoner shall be found guilty of the crime now charged, and shali als> be proved to b»v« been so convicted heretofore a« alleged, he will be come subject to the heavier puui-hment which the law has in such cases ordained. With relerence to this case. 1 think it may be useful to stale to yon the existing rule and practice of the Criminal Law relating thereto.

I will first recur to the practice as it stood brfore the passing of the Statute (6 & 7 WW. IV., c. 111.) by which the practice is now regulated. Former y the prisoner being arraigned, and put on his trial before the petty jo?y, ihe whole indictment was read to the jury, who thereby became aware ai one and the same time of the present charge, and of the alleged past conviction, and they had to inquiieat the s-me time iii<o he truth of both. Now It could scarcely happen that the allegation of a previous conviction should be without effect on the minds of the jurymen. In fact it tome lobe seen by those who were concerned in the administration of-the Criminal Law that the fairness of the trial was impaired by that course of proceeding. Ac Cordingly, it was by a recent Statute (6 $ 7, Wm, IV., C. 111..) enacted that when a piisoner tomes to take his trial under such eircomstanres, the p*ri of ibe indictment which alleges a previous convict ion Shall not he read to the jury until they have inquired respecting the charge contained in ihe indictment, and ihtt if they find the prisoner guilty on that charge, then, and not till then,shall they inquire whdher a former conviction took place or not, as alleged. This rule, so equitable in itself, is however, accompanied and guarded by an exception not less equitable. The exception is this, that if the prisoner, in answer to the indictment, •hall venture to appeal to his former good chaiacter and repute, then the prosecutor nuy at once tender evidence of the former conviction. Now, gentlemen, the Statute of which I am speaking does not expressly refer to the grand jurv. It refers to the Court and 'he petty jury only, being in effect, a Legislative direction to tbe Court how to P'ooeed so as to ensure to the prisonet a fair trial. This is an instructive instance of the care manifested of late years, especially in the enactments of the Criminal law, to ensure that great end,fairness Of trial. But I mention it to yon, gentlemen, be cause I am sure you will seethe justice of the rule so sanctioned by the Legislature. That rule which the Ltgislatuie has imposed upon the Court and the petty jury, ytm will wiMlingly impose upon yourselves. And in weighing any evidence, wliich may be offered to you, agaiust the prisoner to whom I haveieferred, you will be on your guard against a bias, the possible existence of which the Legislature bas indicated and recognised in the Way I have mentioned. Ido not think, gentlemen, there is anything else to justify me in detaining you. The jurors then retired and found true bill 8 against all tbe prisoners, after wh eh they presened to the Court an information against Mr. Cbisholrn, batcher, High Street, stating his premises to he a public nuisance. His Honor told the graDd jurors that according to law, it would be necessary to give 20 notice to the defendant, before be could be called upon for defence. The presentment would be placed in the hands of the proper officer. Thomas Fagan and Moses Booth were arraigned for breaking into the warehouse of Mr. David Nathan, on the 20th of May last, and stealing therefrom two guns and other articles, the property of Mr. Nathan, to which charge the prisoners pleaded not guilty.

The Attorneys General opened the case by stat. ing the circumstances of the robbery ; the discovery qf the guns on tb,e premises of the prisoners and other circumstances bearing on the evidence : the first witness called was.

Mr. D. Nathan, who on being sworn said I keep a warehouse in Auckland ; on the 20th of May last, about three or four o'clock in the afters noon 1 locked my warehouse securely ; on the next morning, about seven o'Clock I lound the door I had secured on the previous evening, open 1 also found a part of the weather boards cut away and a •window taken out: I then went for the chief Constable and we examined the store when I found two guns and four hats had been taken away,(the guns •were loaded.) I recollect the third of last June when 1 went to the bouse of the prisoners, (wiih Smith the chief Cor we found the house locked, and after waiting a few minutes, the prisoner Fagan came up and said. " what do you want here ?," Smith said we want to get in wben Fagan replied that Moses Booth had the key. Smith said unless Boo'h was so<>n found the doors would be b oken open. Fagan went away and returned shortly after, saying he could Dot find Booth, but perhaps the key was left in tbe next house, whicb we found to be the case; the door was then opened and tinder one of the beds we found two guns ; which I recognised as my property & which 1 bad lost, tie guns now produced is my property ; I saw a shirt that my storekeeper lost, but I could rot initntify it* •r jfci ■•■

His H.noui c sked Booth it hr wished lo ds k the witness any questions. The prisoner rePlied yes.

Booth asked the witness whether he knew the guns, and whether they were perfect ? The witness replied, he was not aware there wa 8 any thing wrong with the guns, as he selected them himself and loaded them.

The prisoner then said tbe guns were both im* perfect and the lock nearly off one of them, and the other had a colonial ram.rod. HtsHonour told the prisoner he would be heard presently what he had got to sav, hut at preseot he must confine himsel to asking questions of the witness. The next witness called was Mr. Nathan's storekeeper (Mr. Cooper,,) who meerly corroborated the evidence given by Mr. Nathan, and indentified tinguns produced in the Court as his masters broperty Booth asked the witness whether he could swea l to the shirl ?

Witness replied ye*. The Court and Jury then asked this witness a few qu> stious.

Mr. J. Smith, Chief Constable, b'etog , wo .„ sa'd, I recollect the sOth of May asf, 1 wag „t Mr' Nathan's store, where I saw ttri entrance been -ff cted at the gable end; I recollect the 3rd of June Ist, when I went to the house 0 f tlw prisoners in company with Mr, Nathan'; we foifud the door locked; I knew the house » B « occupied by both the prisoners; after we had been th re a *hort time, the prisoner Fagan came, f to !,| him I wanted the do ,t opened, when he made some hesitation, but r totrl him if he would not open the door, I would effect an entianoe ; Fagan then aottbe key, an i I went into the house and or. searching it I found two guns conoeated under the bed • (the guns now produced are ;the ones I found,) 1 also found a blue shin, (thu one now produced';) i then took Fajjan in.o custody; he said he knew nothing of thap-operty found; I then tan-e,) Moofhto be apprehended; on his apprehension he said he knew nothing about the guns.

t Booth and Fagan asked this witness a few que?* ions. *

By the Cour . I know both the prisoners occu* pied the hous,-, a» f i.ved close by, and have seen them go in and come out frequently up to the lime of their apprehension.

This closed the case for the prosecution. The pii oner Pagan eaUed George Newland.who .said he slept tn the same bunk with Fagan for some ume prior to the robbery.

The prisoners having no further witnes es to ca! The Attorney G. i eral rose and addressed the Court and Jury ou the case whicb he said was a very clear one.

His honour then a.ked Booth what bo had to say m his defence. J

Booth wished to see the guns, but his Honour objected saying he might have seen them at. the proper time. Booth said Tommy knew nothing of the guns.

Fagan addressed the Court and jury saying he knew nothing of the robbery, and declared his innocence,

The Chief Justice in summing up, said the presumption of guilt arising from the possession of property recently stolen is often sufficient to ground a conviction upon, in cases where the prisoner cannot give a satisfactory account of the way in which the property came into his possession The strength of the presumption however greatly depends on the comparative readiness with which the property passes from hand The possession of a stolen Debenture of stria 1 ! amount by any person, at the interval of a fortnight after the theft would create no presumption. But if f.om anything in the nature of the property, or of circumstances connected wiib it, the transfer of such properly f-om hand to ha-id became a matter of great dilficti ty, tbe presumption of guilt might become very strorg. Th re was an additions! point in this case which it was important to considernamely, the conduct of the party accused, did he deal with the property as a. raan would deal with property which he honestly believed to be his own, or has there been any suspicious conduct, any concealment. Here again in this case is a delicate question. If you are satisfied! that you can trace the guilt to the premises, the house of the prisoneis can you carry it home to both, or lo one only' and to which of them ? this will deserve very careful consideration. J

The jury retired for a few minutes, after which they returned a verdict of guilty against Booth and not guilty against Fagan.

Moses Booth being found guilty, fhe Attorney General proceeded to offer evidefxje of a previous conviction of the same prisoner -£o,r felony before the Chief Police Magistrate of AucTThmd. Ihe Chief Justice doubted whether the Statute* could apply in a case like the present, of a summary conviction. Tbe Attorney General said it was a doubtful point, but it appeared to be within the spirit and meaning of the law to hold that any two convictions for felony should render the prisoner liable to the provisions of the Statute. It had been thought desireable to raise the point as it might often occur.

Tbe Chief Justice said the words of the Statute clearly pointed to a former conviction before a Jury. Both that Statute, and the subsequent one on the same subject, spoke of the indictment on the former conviction. He was bound not to go beyond the words of a penal law against any mao. It might be for the Colonial Legislature to give the Couit power, but he could not feel safe in assuming it.

William Stewart and Emanuel Lewis were then arraigned for sheep stealiug/to which they pleaded not guilty.

We gave the p rticulars of the evidenoe in this ca se , n our p„i IC - report, a few dais since, it would,herefore he nsnelew lo republish it. Both tire prisoner, were foaad guilty. Henry Butler Dowie, was ,| ei arraigned on a /-I:t> ;J* r -. , ? yr . b " t '*•*■»« ,b e evidence, as uvea at the police oflce, a few days sine, it is

not necessary under those circumstances to give the evidence again. Mr. Barlley appeared for Dowie and used every endeavour to get him acquitted, but in vain as he was found guilty The Court was then adjourned to t the following morning. Tuesday, September 3rd. This morning the prisoners were called upon to receive sentence ; the first placed in the dock was Moses Booth, when the Chief Justice said Moses Booth, you have been convicted of breaking and entering the warehouse of David Nathan, and of stealing therein two guns of the said David Nathan. No circumstance is shewn in palliation of your offence. The sentence of the Court is that you, Moses Booth, be transported beyond the seas, tosnch p.'aceashis Exoellenoy the Governor shall appoint, for the term of Seven'Years.

William Stewart and Emanuel Lewis, you have been indicted for stealing a Ewe, the property of Sampson Kempthorne, and have been found guilty. Littl« more than a dozen years ago, the crime you have committed was punishable, and often punished, wifh death, The law is no longer so severe. The sentence of this Court cannot touch your lives. It will be for you to turn to better account, to use hon< stlv and innocently, (he years which are spared von. The senHnce of the Court is, that you, William Stewart an I Emanuel Lewis, be each of yon transported beyond the seas to such place as his Excellency the Governor shall appoint for the teim of Ten Years,

Henry Butler Dowie, yon have been indicted for having stolen from your master, John Pieter Du Moulin, IS .Sovereigns and 13 Debenture*, each of the Debentures being o( the value of «g 5, and of this felony yon have been found guilty.

Your offerire is ft very grave one, if if h« ( , n ly i n regard of the amount of property stolen,- |j«i if* main aggravation is in this,—that it wn» com ■ :">>) •gainst nnn to whom you were specially bound lo be faith'u! and true, and whose property it was paito! your tlaiy to watch over, and protect.

It is a painful thing to hav.' (o inflict aheavv ponishme't upon one so young as you are. Yet, I must bear in mind the necessity of cheeking offences of so dangerous a kind, as Well as the p.culnr ne oessity, in this case, of guarding against temptation many who ate now in the position in which you lately stood. Many, who after a childhood spent in the midst of vice, and every evil influence, and succeeded by a brief period of strict di-cipline and controul, are now left in possession of freedom at h very time of life at wlvth 100 nuny. even after careful guidance and good example in their eaih years, are found too weak to resist he temptations to crime. For their sake, and as a warning and safeguard to them, besides other reasons, it is ne cesssary that yhn be removed nut of this land. The sentence of the Coutt is that you, Henry Butler Dowie, be transported beiond the seas, to such place a« his Excel'enov the Guveri oi shall appoint for the nim of Seven Yean.