SUPREME COURT.

Dominion, Volume 2, Issue 432, 15 February 1909, Page 10

SUPREME COURT.

CRIMINAL SITTINGS.

PRISONERS FOR SENTENCE

SEARL PROBATION.

The Criminal Sessions for : the Wellington. Judicial District were concluded at the Supremo Court on. Saturday morning, when several prisoners .already convicted were brought up for sentence. During' the disposal of E. J. Searl's caso, .the Chief Justice .was associated.with Mr. Justice Cooper on the Bench.'."'. -,'.■■■." ■..; ~-..: ■ .. ■■". ; :

THE SEARU CASE. \TWO YEARS' PROBATION. Edward John Searl, formerly of AVellingtpn, and now residing at Akaroa, who had been convicted of forging. and .uttering a cheque for £7, was put forward for sontence. . • ■ . . ,- . ~ ■' Mr. T. ;M. Wilford handed in a number of documents on behalf of the prisoner. : ' , Mr. Justice. Cooper said the caso had given him a considerable amount of anxiety, and he thought it advisable that. ho should shortly state the circumstances. ' Searl nad been convicted of the forgery of,a dliequo for '£7 in the name of his' brother-in-law, W. T, Gilbert; and made payable to' E. Poynton. The-defence had been that the prisoner had reasonable ground for believing that he , had authority from' Gilbert to issue the cheque. Something had been said as to the juryi having been affected by bias arriving at its .verdict, but ho was: satisfied that, the jury had given in honest, conscientious and impartial: Verdict. - Under the circumstances , tho verdict was a ■ proper verdict-, of "guilty." The question arose as to whether the case was property one in which; the First'. Offenders'. Probation Act should apDly? In;order to. determine ~that, one had to consider' the. material., placed before the Court, , the circumstances /under which! the cheque: was- issued^and , the particulars furnished in tho Probation ■ Officer's- report.. It was. clear that Gilbert had not given any authority to Soarl to' issue these cheques. .Searl.had' not received'. any payment in i'respect of the cheque in question, so that he had not received any'advantage; from H, as it had simply been handed .to his wife's landlord, and had never been used or acted upon. The prosecution ~had, been brought some fbur months later. ; Afjter-the: telegram had been sent to .Gilbert':'.the. .prisoner had. issued :. two J other'. : : -cheques, ■v.for- !sinali: amounts '.in''Gilbert's, name','; in:';respect• .to. .which no prosecution.. , had: ; 'ever-.been, insti-' tilted.. The .Probation. Officer vhad; reported, that the prisoner: was , a;"nrst ; : offender. As. to "his :previous character, the ..report.stited that there had been'/a,,:cbnvictioni.'for';assault, *in which the fine and costs had amounted to- £2..75.; but under the 'First Offenders' -Probation • Act ; . that .-...conviction , did not count as a , statutory offence. '. The report further stated , - that" Searl had ,been four, times bankrupt, and that ho was undischarged from ■ his last bankruptcy. - In' acldition it'. contained:' the opinion'' of the Stipendiary Magistrate :as 'to v tW value.of Searl's evidence in a case before the'Magis--trate', but. in. respect to which no -proceedings had. beeiAtaken. The Probation Officer also stated that there had' been no criminal prosecution, against the' prisoner;' and.he had given a history of'Searl's career in business. He, had also: attached a number ,of. testimonials, all. of which, ae.liad .stated, '.spoke very .well of the prisoner.. Amongst tnesb testimonials .was: a > statement -■by- a" gentleman who had formerly acted "as" prisoner's solicitor,, to .the. ciiect that during the period of bankruptcy, and up to Searl's leaving: for Akaroa, , his family was practically in. a statp of:,destitution. Since then prisoner's wife'- had established a. boarding; house at'Akaroa, which she appeared to be carrying on '.'satisfactorily. . The. inference his Honour drew_ from, these circumstances was ■ that - the, (prisoner , had assumed—although lie had ino ground for so believing— that' , * if-he' issued the cheque, Gilbert would; come to his assistance, and that on that assumption he had been tempted to commit a' ; breach of-tho criminal law. He had had very , ?.- , ; grayo /"doubts . as ; to whether: tho Probation Act should apply in this case. The testimonials from gentlemen who: had had no connection.in business with, Searl. were sweepihg generally as,.to''his:geueral' , good: character. ;' Amongst themi;were:>testimonials: from;■ Mr. Aitkeh; "■ formerly a .member .of•' Parliament, for. the city,- Mr;-Wright',' : a : pre-: : sentm'embe.r, and other wfll-known. residents'/ Hβ had'had the ,advantage of .placing the whole matter;before the Chief Justicopfor .the purpose /of obtaining an opinion as to, whether under thes"e circumstances tho Act would properly apply. Tho Chief Justice;was. prepared , to express an opinion upon the circumstances,' which he had just■ stated. ~'' ..-. , - { '■', The Chief -Justice said, he had had submitted, to him; the Probation Officer's report,, also:the facts 'concerning;; the caso;: andstffb testimonials presented in /favour , / of.- the accused., Although he was, of opinion that the. case was on the border line, yethe thought itwas a caso. iiy which probation-should be .'granted. It ;was : a' first offence,.and; that \yas.the governing, question to be determined , by the'; Court in- : applying tho Statute. 'If its was a. person's, first offence there- was nothing ; against.Searl's character, so far as fcriminality-was..concerned, , and as.:reputable peoplb. said his. "character was good,: he did hot' see why the Prpbatiori'Act: should riot apply- ■• -■~.;. -i ,, .;. •''■• ', , : .'■'. ;;■';:'.- :; ,: ■ ■'] Mr. Justice Coopor said he would act "upon ,the Chief Justice's :bpiriion, which romoved a. difficulty in .his mind,,■ and relieved him of a'yvery, considefablo amount of 'anxiety.: Ho thoughtho. ought', to mentipn that tho detec-' tiye.had reported.:tha't:.prisonor's:statement' -thata.horso'ahdigfambphone had been given by him in part payment of; moneys due to his , brother-in-laWv was untrue. However, a tele-' gram.had how' been handed:to him by the Probation Officer' which showed 'that. the ; statement, so , far as the horse at fall events: was concerned, was tnie; 'Under the circumstances,, and- fortified by the opinion of tho . Chief Justice, ;ho should admit the prisoner, to probation for a periodof two years. ' The .prisoner. would havo• to.pay;the edsts of.the: to £39—in eight quarterly instalments of £5: each, the last in-' , ' stalment to,be paid on the day before tho expiration :of : the period of probation.'' He might mention that he was glad to have had the assistance of • the Chief Justice,' because the caso-seemed to.be one in.which riot .only tho discretion of tho ■ judge was involved,: but the application of tho Act; and it was satisfactory to' him that the Chief Justice.had expressed tho opinion ho did. , "■: ; Mr. Wilford formally applied for the return of. the testimonials to the prisoner. ■■•■'■.'.. '.'. Mr. , Justice Cooper replied that they wbnkl have to be, kept attached to the Probation Officer's report,--as-a Court record., . ' . The'. Chief. Justice then retired from' tho Bench: '-.'-■■ . ■:". '■' .'.■.■

; the carrottinc cases. ,; ;';.;;.: sentence op.t,en'years;' ••, Throe .young men named Win. Noil, Jno. and Edward Richard Black, who liad been, convicted on'charges of robbery with violence in Wellington, made lio statement .from : tho, dock, but M'Cormick - s and Black handed in Written statoments. : '■.Mγ.': Justice Cooper, in passing sontence, remmdedihG prisonersof the fact that robbory with violence, was one of tho most serious offences, known .to,tho.. criminal law, of Now Zealand. The maximum sentence was imprisonment for, life, and there was always! discretionary poiv.er to order a flogging, ■ For ordinary robbery .tho maximum sentence, was fourteen years' hard labour. M'Cormick had protested against tho verdict of tl'3 jury, but he had been tried by. three separate juries, and each had_ arrived at the same conclusion —-that,tho prisoner was one of a gang of men 'whp:went about'tho•, streets of■ Wellington ;committing. robbery with violence-'upon, citizens. He sentenced each of the prisoners to ten years"hard labour, Black's sentence to bo concurrent,with oho of seven years ho is at present serving, and he to' be declared an habitual criminal'at the expiration of his terni. Ho had power to order a flogging,;blithe, would not do so in the case of the prison-, ersl However, if theso offences of robbery with violence were to 'continue it should bocome a question for the Judges as to whether flogging should not be ordered, however ineficstvre it might be.. ■ ; ■ . ••■ ■•'•'. "•":• : ~

M'Cormick protested from the dock that he was an innocent man, but Kis Honour reminded him that different juries had not thought so,,and that however possible it .might bo.for one.jury to make a mistake in regard, to identity, it , was not likely, that throe;would , 'do'bo. , ; Itwas open to the prisoner^, to petition, tho. proper authorities if ho considered'his sentence. unjust: : ■• This concluded the criminal business.

P : ; :'.::'; CIVIL; BUSINESS. V ; V ".' : ACTION FOR 1 ASSAULT.' : ' v •".' £400 DAMAGES•AWARDEfi.' ,'; - : Mr. Justice Cooper and a common jury of twelve resumed tho hearing, in camora, of an action brought by Grace Logan, wifo of Robert: Honry Logan, farm labourer, against. Spark Philp, hotelkeeper, Foxtoii, to recover £1000 damages ion cnminal assault.', • Mr. T. M. "Wilford appeared for. plaintiff-, and Mr. C. P.'Skerrett, K.C.,/with Mr.E.-' J x . Fitzgibbon, for tho defence. .:.- : After a long retirement, a majority' verdict was takon .by consent.of theparties, the damages, being fixed at £400, with' costs on the middle scale, and fifteen guineas second day's allowance for counsel. . . ■: The Court adjourned until 10.30 this ing. ...".."• ' .- , .