LAW REPORTS.

Dominion, Volume 6, Issue 1751, 16 May 1913, Page 9

LAW REPORTS.

SUPREME COURT.

LAST OF THE CRIMINAL CASES. TRIAL OF G. B, LUSK. CANVASSER FOR A NEWSPAPER. Tlio last case on the criminal list was hoard before the Chief Justice (Sir Robert Stout) in the Supreme Court yesterday. This was the case in which George Butler Lusk was charged with theft. Until recently Lusk was a canvasser in tho employ of "New Zealand Truth," and it was alleged that in the course of his employment he received ceTtain sums of money (about ,£32 13s. im all) on terms requiring him to account for them to Frederick James Dawson, the manager, and that he failed to do so, thereby committing theft. Details of Fifteen Charges. There were fifteen charges, involving different amounts as follow:—<£s alleged to have been collected from Wollerman and Co. on July 3, 1911; <£4 55., Wollerman and Co., September 18, 1911; £6 55., Wollerman and Co., December 30, 1911; «£3 55., Wollerman and Co., March 20, 1912; .£3 as., Wollerman and Co., Juno 4, 1912; ,£3 55., Wollerman and Co., August 19, 1912; .£4 55., George Bradley, Lower Hutt, August 9, 1912; .£5, Andrew Avtrson, Lower Hutt, August 10, 1912; .£2 55., Patrick Wm. Corby, September 2, 1912; •£G 95,, B. C. Warnes, September 20, 1912; .£l, W. S. Hood (Cricket Association), January 31, 1912; £3 55., N. Westbrook, March 15, 1912; ,£1 125., W. S. Hood (Cricket Association), April 17, 1912; .£3 12s„ M. J. Donnelly, Juno 5, 1912; £2 155., Percy Rodgers, July 11, 1912. One of these charges (.£3 55., N. Westbrook) was subsequently withdrawn, as tho evidence of a Crown witness proved that such an amount had been paid and credited in the books of the newspaper. A further reduction in tho charge was ma do by fixing the total amount due on account of Wollerman and Co. at .£5 15s. Mr. H. H. Ostler, of the Crown Law Office, conducted tho prosecution, while Mr. M. Myers appeared for Lusk, who tendered a plea of not guilty. Evidence for the prosecution was given by Herman W. A. Wollerman, manager for Wollerman and Co., wine and spirit merchants; W. S. Hood, treasurer of tho Wellington Cricket Association; M. J. Donnelly, of MacMahon and Donnelly, picture proprietors; P. Rodgers, licensee of the Shamrock Hotel; P. W. Corby, licensee of the Terminus Hotel; B. C. Warnes, manager Oxypathor Company; George Bradley, motor and cycle dealer, Lower Hutt; N. Westbrook, commission agent, Lower Hutt; George L. Rae, accountant, "New Zealand Truth"; F. J. Dawson, managing editor "New Zealand Truth"; Henry Bomstein, of Sydney, general manager of "Truth"; nnd Detective Andrews, of the Lambton Quay police staff.

ma do by fixing the 'total amount due on account of Wollcrman and Co. at .£5 15s. Mr. H. H. Ostler, of the Crown Law Office, conducted tlio prosecution, while Mr. M. Myers appeared for Lusk, who tendered a plea of not guilty. Evidence for the prosecution was given by Herman W. A. Wollcrman, manager for Wollerman and Co., wine and 6pirit merchants; W. S. Hood, treasurer of the Wellington Cricket Association; M. J. Donnelly, of MacMahon and Donnelly, picture proprietors; P. Rodgers, licensee of the Shamrock Hotel; P. \V. Corby, licensee of the Terminus Hotel; B. C. Warnes, manager Oxypathor Company; George Bradley, motor and cycle dealer, Lower Hutt; N. Westbrook, commission agent, Lower Hutt; George L. Rae, accountant, "New Zealand Truth"; F. J. Dawson, managing editor "New Zealand Truth"; Henry Bornstein, of Sydney, general manager of "Truth"; 'nnd Detective Andrews, of the Lambton Quay police staff. The evidence was mainly on the lines of that given in the Lower Court. Several of the witnesses were subjeoted to a lengthy cross-examination by Mr. Myers, especially as to the mode of crediting the commission due to Lusk and as to the matter of deductions for bad business, nnd whether Lusk had ever objected to this or insisted that he would have it from the firm. Sir. Myers also crossexamined as to the commission that fallen due to Lusk since, the charges were laid. No evidence was called for the- defence. Some Argument in Court, During the course of his address to the jury, Mr. Ostler referred to a letter that had been written by the local manager of "Truth" to the "Sydney manager. In this letter it was stated that the defalcations had occurred and the evidence for the Crown was to the effect that tho letter had been read over to Lusk, who made no objection. Touching upon this evidence, Mr. Ostler said: "Mr. Dawson has given evidence to-day that ho showed the letter to tho accused and that is not denied." Mr. Myers objected to Mr. Ostler commenting in this way upon the fact that Lusk had not given evidence. Mr. Ostler: Thnt is tho very point decided by the Court of Appeal a few days ago ana I am taking advantage of it. • Mr. Myers: That is a very different thing from what tho Court of Appeal decided tho other day. His Honour: I don't know that it is.. Mr. Myers pointed out that the letter had been introduced in re-examination and the witness had not been cross-ex-amined on the point. He desired to have the benefit of tfie'objection if ho thought necessary to raise it later on, and therefore he asked that his Honour should note it. His Honour made the note as requested. Mr. Ostler said that he was prepared to withdraw tho remark. Mr. Myers: What is tho use of withdrawing it now that "the damage is done? Mr. Ostler explained tliat he would withdraw in order to substitute tho remark that what Mr. Dawson had said was the only evidence on the point. Mr. Myers addressed tho jury at some length and contended that tho Crown had not clearly proved that Lusk had "fraudulently" failed to account for any of tho moneys. It" was not theft to merely fail to account for money, and he submitted that no fraud had been made out. No evidence had been called as to the exact terms on which Lusk had been engaged, though the Crown could easily enough have located the mail, who liad beenmanager, when Lusk was appointed. Counsel further submitted that if accounts were now made up between "Truth" and Lusk it would really be found that Lusk not only did not owe "Truth" any money, but that he was owed about „C 9 by the firm. While Mr. Myers was making a remark about "Truth" asking the jury to convict Lusk of theft, the Crown Prosecutor objected and pointed out that the case was now entirely in the hands of the Crown. His Honour indicated to the jury that it rested solely with the Crown as to whether proceedings were taken or not. Mr. Myers said that at all events the proceedings were the outcome of action by "Truth." Hn submitted that the jury should treat the matter as one of accounts and not find tho accused guilty of theft. Tho jury retired to consider their verdict at 5 p.m. Lusk Not Guilty. After a retirement of about an hour and three-quarters the jury returned with a verdict of "not guilty." They considered the matter was one of accounts betweon Lusk and "Truth" proprietors. Lusk was discharged. CONFIDENCE TRICK. EIGHTEEN MONTHS' HARD LABOUR. Two young man—Allan Moody and Harold Brons»n--who had been found guilty on Tuesday of conspiring to defraud by moans of tho confidence trick, were sentenced by tho Chief Justice yesterday morning. Mr. V. R. Meredith, on behalf of tho accused, asked for leniency. Mr. Ostler informed his Honour that both accused had been convicted of offences in Australia. Thev came to New Zealand' at the end of last year, and since then had been "doing nothing but taking people down." His Honour imposed a senlenco of eighteen months' imprisonment with hard labour in the caso of each prisoner. CIVIL BUSINESS. In the Supreme Court yesterday his Honour Mr. Justicc Chapman heard an originating summons on a question of acceleration. The parties wero the Public Trustee, plaintiff, and Mark Johnston, of Now Plymouth, and Alexander Gore llrqtt, of Parnell, publishes, defendants. Mr. J. W. Mac Donald (solicitor to tho Public Trust Office) appearejl for the plaintiff, and Mr. Alexander Dunn for t'lie defendants. Daniel M'Gregor, of Normanby, fanner', died on February lit, 1830, and his executors wero granted probate of tho will. On December 30, 1830, the Supreme Court ,

appointed llio Public Trustee trustee in respect of file trusts of ono soventh part of tho residue of the estate for his son Duncan Henry M'Gregorj These trusts were to pay the income to Duncan Henry M'Uregor for his life, or until he dicl something whereby the income became vested in some other person. After the determination of the trusts in respect of the incomc, the capital was to bo held for his lawful children, or, failing him, to his brother and sisters, and their issue, whom tho defendants represented. Duncan Henry M'Gregor, on October 18. 1911, mortgaged his interest to ono John Edward H. Gentle, of Johannesburg, having lived in South Africa for many years. In an action brought against tho Public Trustee to obtain relief from flic consequences of his forfeiture, the Supreme Court affirmed that lie had lost all interest under the trust. Ho is a bachelor, and the question arose as to the disposition of the. capital and income after his death, and whether tho interests of his brothers and sisters had been accelernted. Decision was reserved.