LAW REPORTS.

Dominion, Volume 2, Issue 486, 20 April 1909, Page 9

LAW REPORTS.

COURT OF APPEAL.

'''a heart-to-heart letter.

ABOUT OPENING SAFES. Tho Sittings of tho Court of Appeal were .yesterday;;; Mr: Justice Williams . (presiding), awl Justices Denniston, Edwards, ■; Cooper and Chapman being present. :.■■■ ■;■■■ An, interesting point was raised, in oon■;v' ncotion . with ■; t'ho caso of tho rKing versus v Charles Bakor, which- was- then taken. . Tuo men named Scott and-Way broke into. the "Economic," at/ Wanganui, with intent to -: oominit a erimoi • Prior to Uie.dato, of tho ■ offence; Baker; it was alleged, wroto a letter • /out of whioh varose-'-s charge, which, was - brought 'against him. vTho question f<?r tho - ■ Court was as to whether tho evidonco against Baker disclosed tho offeneo of which ho was convicted. Mr. Myers (with him Mr. Hutton) appeared • for, tiio ■ Crown, - and Mr. Treadwell, . of ! Wanganui,-' for the prisoner.-. ■ • ' Accordingto thovstatenient 1 of tho - : ease set forth by ''Mr. ■■ Justice ,Chapman, ■■ Baker was tried before him. at. Wanganui in .March last • Tho various counts in the indictment were briefly-as, under ;—(l) That he wrote 6* letter to Scott instructing him in tho • method of' using- an • explosive .to-force .open ■ locked sate for the purposo of- aiding Scott • to commit tho. offenco;of '.- theft by such ' means;; (2) that he did counsel and prrcure : . Scott to attempt' to steal the. contents of locked safes by means of'the use of an explosive; (3) that ho did counsel and procure Scott to break-and enter by.night tho "Economio," at "Wanganui for that purpose; (4) that he did- counsef and procure Scott to attempt to -. commit the offence, in question ; (s)::that-he ;v wrote'.the letter-for' the, .purpose of aiding Scott to attempt: to' commit /such--a theft;; (6)\that he wrote .the letter .with -the objcct . of' aading Scott to: commit T.tlio olfcnco; -v 7) • that he did; enter tho with- intent, .to-commit thoi crime;: and. (8) that > he attempted to commit the offehco. He (ms !. Honour) had. directed tho jury to tho oflcct -.-that it was-open-to them to-''find- v Baker guilty on the whole-iridictraent.: -Two ques- -!• tions' put to '.the.'.jury^were.;-:answered as uhdor:—(iy.'''.'iWas ;th6,lotter..wntten-.to :Scott by tho prisoner written with reference -to ■ a • iDontemplated crime to bo. committed at the :;'Economic' ?"—Answer,: No; (2) "Was the • letter • written ' with: referonoe to: p,-cnmo or. ' crimes ■ v contemplated ■*. -generally ?"—Answer.: Yes.'. ißaker was found guilty, but sentence : was.deferred to enable tho opinion of the ■■■■; Court of Appeal to bo taken on tho whole case _ ' > • following-! arev extracts; from-. tho 1 lettep in Question — ( "Dear Old Pal,—Receivod your letter to-day alright. Glad to hoar from you so' ■; soon. So youare thinking of .'doing :business, and- you have also got another room. .Sorry you cannot-get a. job,- but r I suppose something will turn; up before ■ long. I-hone tho'Mra is getting oil < .good. Well, Bill, re .stick -of. lollio and - tho way to us© it.-, It is-a thing you can -use easy. ;....(Hero follow,,particulars ; i . os to howi.the !explosjvs. should: bo applied.; to safes.) • If not successfiil, 'repeat tho dose againi-iWell, Bill, if you do the job, ;: i.ii-I-/hope you aro successful; ..good: luck to •'r you, and before you do-it, can you depend., ~ upon your acoomplico—make suro he is staunch. ; WelJ, . Bill; I -hope you' will excuse the pencil and bad writing and bo suro to-':destroy this at an early ■'■■■ ; stage. Wellj I think I havo- said, all at ~ . present, hoping to -hear, from you again . • ■ whether you are successful or otherwise, • . ! , believe', me your, old,.pal.'; /. Good luck: • Bilhe,—C.B." j_ • , J SEVERAL FIXTURES MADE < .: The order - of seVeral 'cases •'\?as il? fi&>d as nnder.— i i n • April 19.— : April 19.—Poingdestre" t. ' ■ Polngdostre, ' motion for directions vas •- to service,\ before l Full 1 'i i "• Apnl *19 v —Rex-v.-Hughes (if time permitted) » ' '» i t I' April 20.—Te Roera Taroha v.'Sim and •; ers.'f^.juv;; : • : Next , in order Commissione- of- Stamps v. M'Donal and others Nika Waiata v. M'Gregor. < Upon tho application- of Mr. Skerrott, K.C., .leavo was : granted; for ' tho 'setting down of the,cases of Hussey v.-Miles—an ap- , ;-peal from a.decision of Mr; Justico-Chapman : r—and Whitehouso and : Bayliss -versus Wellington City Council . for the prisoner, -remarked that he would not say that tho letter, was croditable. i'^ s *' ce Denniston; You,;arq not hero -. : to- defend tho man's morals Mr.,, Justice . Chapman-:. It Was - a professional letter? (daughter) ) 1 Resipung, counsel stated that tho question - was_whethor tho letter brought Baker with- _ in Section .-90 of the. Code.-- -The -Jiirv.had, he submitted, found that there was no preopneerted arrangement 'on the - part' cf Scott and Way, to break into th ?',"Economic," and that when tho letter v,was wntten by Baker no orimo was • corttemiplated at,-tho but that therowas at. the time of tho writing of the letter . a: enme. contemplatod - generally, • His ' sub- ■ .was . that tho - finding of the jury' dis- . postd . of all the counts... in : . the- mdictmout , .and 2,^and ,that as regards .; thoy disclosed. no: offence'because they wore too general. If Scott and Way had ' ®P GII -^ 61 safo at tho "Economic,'' ho would have nothing to say As a matter of ('fact, when they got into tho building thoy repented Mf Justice Denniston But did thoy not attempt to blow open tho safe? Does not tho fcrst" overt act in , connection with a ■ contemplated enmo ,• .constitute ■; van''' : '' 'attempt" i CounciL m reply, said that Scction 90 ot the Code made an aider of an offence and a counsellor or procurer, a principal It ... .meant..that,.the.- ; act, .in .tho,way. of- nidinc, must be in .connection with an offence actu- : al y carTicd.,out,. or in .;the .case, of a coun?ell«r noe; V tc t" -contemplated; i nothmg further than to write' «Jn . £iving particulars a, to how to nlmnaf Iha so a ??inst Baker lested almost entirely on the evidence of Scott and iwny t ,s lr ,;^ €rS ' /°// th 6 Crown . contended that v ~the i of. the jury, m conjunction with d ™ ISEIOC s:«f fouuecl for Baker, con+hu® Mr ' Treadwell had admitted /that if A wont to B to obtain advico and did obtain it, as to how A should go about to murder someboJy-it did not matter whom—and A then murdered somebody m pursuance of that adiico, D was also guilty ot murdfr., If A failed m actually completing the murder, of an '. offence then ( V; surely; of Sttemptod inurdor if he would haie been guiltv . oi.the. Mniplcte.olfenco ... Jence had, been committed. Air. Justico Williams Under which counts °° y° u su Sgcst that, the convict»on will hold Boott* Mr. Myers: I admit, there is soma doubt as to tho farst iwo, v^-' 5 Honour: What ahout counts 3 to 6? lou would need to show,.that the offence was committed. t \ vi^A y - ers J ly J l , ll that ho has ; - ...brought, himself within counts 7 and 8. ' If prisoner counselled or procured or did nnv act for the purposo of aiding. Scott, then ho'could bo charge<l as a principal „ment. was also , advanced ' 1 by ' Mr Hutton on behalf of the Crown. ■. , ■ J i Iliams, v m .- the 'eourso of 5 judgment, eaid that. Mr. Myers had verv properly abandonet tho firit sis counts of the indictment. An examination of them showed tlut th6y did not chaise Baker with nnv offence. He would deal luth the ci?hth . count,, hrst,- -because' a cuso against ; Baker was made out more clearh under it than undei the seventh count The fiist essential to prove the-eighth count was that tho of lonco there charged was committed by somebody. _ It was clear that the offence of attempting to steal by means of an explosive was ,cbmmitted by.Scott and Way; ■ Wop Baker a party to the offence" The jury had v • /found-that..the; letter.',%iUori 'byJ.Baker .'did . not have reference - to a crimo contemplated .to. be: committed at the "Economic," but thai «t w»s written with: referonco to a crimE

contemplated' 'generally.' Baker had" written a .lettejr to Scott and Way, explaining how. a crime of a particular nature was to bo committed. Scott and Way then attempted its commit; tho crime. Ho felt that Baker ; waft..-c-qually, guilty; withthem..in': making the., attempt. ;. In or.der to commit" Baiter; under the seventh .count, it must: appear, that he came within Subsection 2 of Section 91 of, the.Crimts Acts If breaking and entering tho : promises' was < under. . the Sub.--section' an offence■ which .' Baker know, •••or ought to have known, wsb to-bo'com-mitted, .in consequence' of his counselling (to .Scott' as tohow 'to'.; break opeil : safe's, tn.eri Bakor was guilty under the* soventh count. -The ;case under, tho. BBvepth count was liot made out as clearly as was tho caso- under the. eighth count.l'he conviction ought to bo' affirmed. , . '•I'he other, members of. the'.Court also, held' that . tho. decision of tho jury should stand.