SUPREME COURT.

Dominion, Volume 3, Issue 794, 18 April 1910, Page 2

SUPREME COURT.

PRESS MANACER IMPRISONED AND FltiED £50. THE COBURN CASE. "REAL OFFENDER NOT PRESENT." Mr. Justice Chapman had before him two prisoners for sentence on Saturday morning. Mr. M. Myers appeared for the Crown. ' Henry Stephen Coburn, manager of a newspaper called "New Zealand Truth," was brought up for sentence, having been convicted on a charge of distributing obscene printed matter for public sale. Coburn was tried by a special jury of twelve at the last Wei-, lington criminal sittings. An appeal in. his case was decided a few .days ago, the Court affirming the conviction. . Mr. 1\ M. Wilford and Mr. A. Dunn appeared for thd prisoner. Prisoner in Poor Health. Mr. Wilford: I wish the Court to hear some evidence. Call Mr. Dwan. 'Mr Myesrs: If. it is evidence of character, I might help my friend by saying that I am perfectly willing to admit that the prisoner'is of perfectly good'.character. , His Honour: That is so. -1 shall assume,.' Mr. Wilford, that there is no question about it. That was explained to me at the trial,, and had it not been I should have assumed that he .was of good charaoter. I shall assume that your evidenoe* has been heard. • Mr. Wilford then read: affidavits by Drs. Bowerbank, H. J. M'Lean, and Perkins, all of whom stated that Cobum was suffering from chronic rheumatism and neurasthenia, and expressed the opinion that confinement in gaol would bo very prejudicial, to his health. Dr. Perkins said that he had found Co--burn in a highly neurotic condition bordering, on melancholia. ; Mr. Wilford recalled the fact that the jury had recommended mercy, and it was fair to assume that that recommendation had been made because the jury 'realised that, though legally Coburn had. no defence, still he, being in charge of the commercial part of the paper, had practically no supervising interest.. Counsel then intimated that he wished to call the sub-editor of the paper to explain the details in regard to tho issue of the article. . '. His Honour remarked that, if it was a matter of defence,, it. might have been .. raised at the trial. 'Mr. Wilford explained that an admission would bo made in the evidence which he proposed to call as to the obscenity of the article. This. evidence, had not been furnished to him previously. His. Honour: It may .result; in- someone else being indicted.. Mr. Wilford: No,.because he-cannot be found, and is not in New' Zealand.

•His Honour: He may be found later. Gilbert Joseph Ryan, sub-editor of "New. Zealand Truth," stated that,; at the time of the publication of .the article, Mr. S. A. Rosa was editor, and witness, by, making representations to Rosa , aibout the article, succeeded in getting its publication held over for . a week." The. article had previously appkired;in Sydney t and Brisbane, but he' told.-Rosa •thait-.-suchi jnatter could not be published in New Zealand. .

In cross-examination,- • .witness added that, the distribution of the paper was' i-ii the hands of a staff of publishers.,lt, editor, who had power to, say that'papers were not to go out. ';, . . Mr. Wilford, in the course of a .further,, appeal for the leniency of the Court,- referred to the medical ' evidence, and remarked that "no Court was out to judicially stone a man." The Tool of Others. , His Honour, addressing the prisoner, said that he ; accepted in the, main what had been stated by the doctors, but he considered that he would not be doing his duty if he were to refrain from sentencing,Coburn to some term of. imprisonment. In making /the term a short one, he was taking into consideration what counsel had urged, and what he. believed was probably: triie, that , the two. months which had elapsed ■since the trial had resulted in almost a worse punishment of Coburn.than if he had spent- the period in gaol. He could understand, that a respectable man like Coburn must have.suffered far more than, if 'the matter wero at an end. However, the medical evidence, to his Honour's mind, did not go beyond a statement that Coburn's complaint might be aggravated by imprisonment. The actual period for which Coburn woiild be imprisoned* his Honour said, would be 'so short that he had no reason to fear that the prisoner would, suffer seriously, from the incarceration. "A man who is imprisoned in this oountry is humanely treated," ■the judge, continued, "and you will receive' in prison as good treatment as you . would if you were in hospital. Moreover, you will receive medical attention, and, if there is any fear that serious ultimate injury will be done to your health, a recommendation will be made to the Government with a view to' avoiding any such risk of permanent .injury." His Honour went on to say that, though he had to. consider it as Coburn's case, he had to go beyond that,.and consider it,as a case in which the public 1 were interested. Coburn had allowed himself to be the tool of others, who were making money, out of this : kind of thing. • To Protect Working Man's Children. i His Honour accepted Coburn's stateliicnt that he himself derived no per-: "sbrial gain from it. However, Coburn had accepted the position as manager 'of the concern, and he knew that there : had been previous prosecutions. , He must have known that the paper had in the past published risky matter. It was true that Coburn did not know .that the article was in issue in the paper when printed, .but' he knew what ltyan knew, that matter had been published in two of the Australian States which could not be published in New Zealand. "Our. laws," said his Honour, "are instituted in'the interests of the young people, of the families of .tho country,' and, more "especially, in tho interests of the children of working men, who have not the means of supervision over. what is '•picked up in streets as those who can. toll off servants to look after their children. You must have, known the character generally of the matter appearing in your paper." Prisoner collapses In Court. The prisoner here collapsed and was carried downstairs. Mr. Wilford asked that thepassing of scntonce should bo delayed as" little' as possible, on account of the prisoner's condition. "Could you not pass sentence now ?" asked counsel.' His Honour: I must,do it while ho is present,' and while he can understand' what I say. I was nearly finished. • • In a couple of minutes, Coburn reappeared in tho dock. His Honour proceeded, saying that Coburn had had a general knowledge of what appeared in tho paper. His position was a difficult ono, but a man who took a position of that sort rah the risk of being held liable. The man who held the position of publisher, was a mere

subordinate of Coburn. "I do not ~ doubt that the real offender or offenders are not present," continued bis Honour. "Whether, they -will be found in New Zealand at a later date I do not know. I nnist, however, inflict some ' punishment that will not merely punish you,—because. that is only oile of the , objects—but that will make it generally known in this country that this kind of offence is to be dealt with Beverely. In any future case of the kind, if. the evidence relates to anything as bad aB that which has been put in evidence in this caso, the punishment will ho a. severe one. As to the matter complained of here, I have never read or seen anything in any publication so-purpose-lessly obscene as'this.' Very often, there is some kind.of excuse for publishing questionable matter; and, rightly or wrongly/ it. is regarded as having some ulterior purpose. In this case,/ nothing of the kind could.bo suggested. I intend to impose what I consider to he a very light'phnishment upon you. ; and I intend to treat., tho past two,; months as part .of the period, not mere-; ly because the law treats it as. part, of' the sentence, but because I -quite appreciate the fact that you have been suffering punishment during the whole of that time. The sentence is that you . be imprisoned for four months —without hard labour, in consideration of "your good character—and to that sentence I add a fine of £50." His Honour added that the term to he served - was practically, two months' imprisonment. Also he would have the prisoner medically examined.

REMEDIAL PRISON MEASURES/ ' . James Baldwin, who had pleaded/ guilty at New. Plymouth to two charges ' of burglary,- expressed repentance, and : asked for "one more chance." ; Mr. Myers said that' the young mint had been previously convicted of break- j ing and entering, of being a stowaway,' : of gross assault, and of other offences. The sum of £24 19s. Bd. had been rocovered from him, and the Crown Prosecutor asked: that partial restitution should bo. made to the two persona . whose property had been stolen; by dividing 'that sum - and awarding theni : compensation., | . His Hohout - said that ho would give • the prisoner another chanoe; but not .by giving: him' his -liberty. The Govern- : nifflit. had now made provision for -tho ■ training and educating ofyoungmen - who had to.be sent to pnson, and the'" ternrin this case would be'lß months'- -.: imprisonment, with hard labour, "on each charge, the terms to be served concurrently. An order : for the restitution- of the money would be made. * ■ ■' CIVIL JURISDICTION. A BIG ESTATE. . i.: Sitting in civil jurisdiction on SatuN day morning, Mr. Justice Chapman delivered judgment in the case of Edgai Holmwood v. Donald Rcid,- an action - which arose out-of negotiations for-tho V sale of a large estate, and the hearing' of which occupied the Court'for. foitr - days towards the end of last. year. : '- hrthe course of his judgment,-' Mr.' Justice .Chapman, said that J Holmwooil . claimed a. large sum for ;damages for the refusal of Keid to complete, the pur-,'? chase of an estate calleif "Bainesse.'fat the price of £13,500. : Reid con-;-tended - that,, the, agreement was - : ob- . tained 'by fraudulent misrepresentation. Several of tho charges related to the -.' quality, and- tlie>productive capability of the land,, whicn was: mostly-sheep .- and, cattle pasture. / During the hear- . ing, -which lasted four days, it waa ; . agreed that questions should be put to' the jury, and these, when drawn up,! ] were fuJlj; assented to by oounsel for both parties. ; ... -. After tracing the facts, his Honour re.sflrked v:> that Holmwood!> had l>eeii , put to tfie expense of litigation: 'on , ters which Reid ' might.-haye J "admitted.' .* Judgment givenjfp'r defendant, with' costs'j'as per scale,': aad,:£ls' 155...-. 'for' each 6xtra- -together nesse's'. expenses, 'to' -be- fixed by'-tho';' 1 Registrar, and ; any coSta ■ that had been reserved, ■stbject-to' the following 'deductions:—His "- would disallow one-fourth of "the allowance for preparing for trial,.the'Sl-:' lowance of £15. : 155. for the fourth!" day, and the jury , fees for that day. His ; Honour also disallowed certain witnesses' expenses, not because he -could exactly determine, which-ought to be disallowed, biit because by; doing so he . can make an . approximation to what. he-', conaidored a fair result, while too elaborate' an apportionment.: This,.-: his: Honour thought, wbuld.cbe pro- 1 - perly effected ,by disallowing ; the ■-> e£«' ; ; : penses .of:tlie defendant attending as a.; ! - witness,'arid half the .expenses ; of his . surveyor, Welds, for preparation • and attendance. As to the costs of, the mo- - tion for judgment, no doubt the; de- - fendant's counsel had to consider tlio effect of the verdict before he Was ijfc formed that plaintiff did; not claim -it. He had also to resist a claim whion had only been partly sustained. His - Honour allo-ved the defendant the inoi erat-e sum of £1 4s. ' .'