SENTENCE REVOKED.

Auckland Star, Volume LIX, Issue 238, 8 October 1928, Page 5

SENTENCE REVOKED.

CAR-CONVERSION CASE.

SHARP DEBATE XN COURT.

S.M.'S DECISION CHALLENGED.

More was heard at the Police Court this morning about the capture of two men, William Thomas Russell (26) and his twin brothev, James, who were arrested last Friday night in Park Road on a charge of converting a motor car belonging to Harrison and Gash to their own use. At the original hearing on Saturday, September 30, William Thomas Russell, who pleaded guilty and accepted all responsibility, was sentenced to three months' imprisonment, while James Russell, who had pleaded not guilty, received a similar sentence. There was another man in the car when it was held up by a taxi driver and by two other young men, but he escaped after a tussle between all six on the roadway. At the hearing neither of the Russells could tell the Court the name of the man who got away, or where he lived. They only knew him as "Leo." Subsequently Mr. Allan Moody, on behalf of James Russell, sought a rehearing, which Mr. F. K. Hunt, S.M., granted. Mr. Moody did not appear for the Russells when they first appeared in Court. This morning the case was reheard, and the proceedings were marked by several sharp arguments between Mr. Moody and Mr. Hunt and counsel and Senior Sergeant Cummings, who prosecuted. Evidence was given that the car was taken from Fort Street about 8 o'clock on Friday evening, September 29, and that it was seen about 10 p.m. in Park Road by Clyde Henry Porteous, employed by Harrison and Gash, his friend, Arthur Moselen, and a taxi driver. These witnesses stated that they questioned William Russell, who drove the car, as to his right of possession of the car. William Russell asked what right Porteous had to demand this explanation, and an argument ensued. William Russell offered witnesses a 10/ note to hush the matter up. When tbi» was refused, he said: "You can take it or leave it. We are going." In the meantime James Russell and the other man were standing nearby. Porteous and Moselen tried to keep the three men on the road while the taxi driver went for a policeman, but they endeavoured to get away. A fight then started. James Russell took part in this, and helped to free the third man, "Leo," who got away. A constable then arrived and arrested the Russell brothers.

Police Regulations in Question. Cross-examined by Mr. Moody, the witnesses admitted that it was William Russell who did all the talking. Constable Mawhinney, who effected the arrests, said that James Russell refused to give any explanation, although he had every opportunity of doing so. While on hail. d the original hearing, James Russell told him that he saw "Leo" near Grafton Bridge on the morning of the trial. Mr. Moody: You took no statement from him?— No. Do not the police regulations say that you must take a statement from a man as far as humanly possible?— No. "That is not correct, Mr. > Moody," said Senior Sergeant Cummings. "It was a good shot in the dark on Mr. Moody's part." "I know a little about police regulations," replied counsel. "Well, you are wrong this time," said Mr. Cummings. "Had Nothing to Say." Sergeant Classen, who saw both Russells in the watch-house after their arrest, asked James Russell for an explanation, but he began to cry. Witness made it clear to him that, in the face of his brother's explanation that he took the car and merely asked his brother James and "Leo" to go for a ride with him, if he could find out "Leo's" name and address, it would affect the course of action of the police. "James Russell had every facility to make an explanation, but he had nothing to say." said witness. "I never ask an accused person to make a written statement, he can do so if he wishes," concluded Sergeant Classen.

"I congratulate you, sergeant," said Mr. Moody. "It's a pity they are not all like 'you."

That concluded the case for the police. Case for the Defence. • •Mr. Moody said that James Russeil was a married man and had beeu a bread carter for a number of years. On the afternoon of Friday, September 29, he has been in town on business, and after leaving home about 6 p.m. again went down town with "Leo." Quite by accident they both met William Russell, who asked them to go for a ride in the car which he said he had been lent by a friend for two hours. James Russeil was in no way involved with the conversion of the car. His brother William accepted all responsibility and was at present serving the sentence imposed upon him for doing so. "I was not present at the trial, otherwise I would have asked for an adjournment so that 'Leo' could have been found," said counsel. "However, on the evidence that was placed before your Worship I will admit that I might have possibly convicted James Russell — ." Mr. Hunt: Only "possibly." Mr. Moody added that it was only on Monday last that he located "Leo" and obtained an affidavit from him for tho purposes of the rehearing. At counsel's instruction "Leo" then went and made a full statement to the police. Mr. Moody said that neither of the Russells knew* "Leo's** surname, or where he could be found.

William Russell was then called. He admitted taking the car, and meeting! his brother and "Leo" and offering them j a ride. He told them that it was a friend's car and that he had it for two hours. There was no arrangement between his brother, "Leo" and himself about riding in the car. James Russell then gave evidence, as also did "Leo," Austin Leo Nevin, a youth of 19. Both were cross-examined at some length by the magistrate and Senior-Sergeant Cummings. Adjournment Granted. At the conclusion of the evidence, Mr. Hunt said that the case certainly bore a different complexion than before. James Russell's story was corroborated, but still the evidence disclosed an offence. James Russell was really an accessory after the fact. "However, he has spent a week in prison. He will be fined £10 — ." Mr. Moody: Will your Worship state a case for appeal on that? Mr. Hunt hesitated. Mr. Moody: Well, I'm going to oppose it. I ask for a dismissal and I object i most strongly to the course your Worship has taken. There is no charge before the Court of being an accessory after the fact. Senior Sergeant Cuinmings: I will ask that tne charge be amended now. After further argument Mr. Hunt granted an adjournment until to-morrow morning on the question of the amendment of the charge.