SUPREME COURT.

Evening Star, Volume VIII, Issue 2287, 5 September 1870, Page 2

SUPREME COURT.

IN BANCO. This Day. (Before Mr Justice Chapman ) RECiXNA, V. EAGLEY, His Honor delivered judgment in this case i)i which a rule had been obtained to lilo a writ of quo warrauio against the defendant, on the ground th t ho improperly exercised the office of councillor for Bell Ward in the City Council. The rule was obtained upon affidavits which set forth two voting papers which it was alleged were improperly rejected by the presiding officer, inasmuch as they showed upon their face that it was the intention of the voters; to give their votes for the relator. The number of votes at the close of the poll was, Bagley 211, Woodland 210, so that if both or one of the votes were improperly rejected, the rule ought to go. The answering affidavits included one by the presiding officer, who brought before the Court five other voting papers rejected on supposed defects similar to those which induced him to reject the two votes now claimed. He must assume that they were fac similes of the votes given for no objection was urged against them by either side, and they came from a source which must be presumed to be unbiassed, therefore entitled to confidence. The Hr t question was whether he • (the Judge) ought to look at these votes (C to G) at all. _ Not that it made any difference in his decision, but he thought"it well to consider the point as it involved important principles. The case of the Queen v. Quayle relied upon by the relator was not applicable to the present. There it was a question of disqualification ; here whether the balloting papers were a sufficient record of their votes. He (the Judg'd was not called upon to disqualify, cr register one or more voters alleged to have been improperly disqualified ; and was therefore of opinion Jie could look at all the voting papers which were rejected upon one principle, viz., that in the presiding officer's opinion they did not comply with sec. 21 of the Otago Municipal Corporation Ordinance, 1805. Referring to the provisions of that section, his HonOr said the intention of the legblature being to facilitate and not obstruct the record of every citizen, the Ordinance should receive such an interpretation as was favorable to a free exercise of the franchise, having due regard to the other provisions to ensure certainty. Any mark within the square opposite a candidate’s name should bo aocpptpd as conclusive, though it depa-tedfrom the form of the cross. Reverting to the voting papers, his Honor said, in paper A, the inten'ion of the voter to record his vote in favor of Mr Woodlands was free from doubt. There was a cross on the square Mr Woodland’s name, and something which had the appearance of a cross in Mr Bagley’s square, but thijj wail.obliterated by a circular flourish in red pencil, He had no doubt this was, intended as a cancellation tfye mark, the voter had made opposite M r BagleyA nanjo. Paper B had one mark on its face—a well defined stroke horizontally thrown across Woodland’s square, expressing beyond doubt the intention of the voter to record his vote in his favor. Paper C was more unequivocal in favor of Mr Bagley. All the other were ambiguous. Thus, then of the unambiguous voting papers, two were in favor of Mr Woodland, and ope in favor of Mr Bagley, rendering the votes equal gig f°J' each candidate —and therefore the rule must be made absolute. 3 Ho would reserve the question of costs until he had heard both learned counsel. CRIMINAL SESSION. The September session was opened to-day. Mr James Murison was chosen foreman of the grand jury. His Honor delivered the following charge - Mr Foreman and Gentlemen of the Grand Jury—Had it not been for the occurrence of oiro gigantic crime, I should have been able to congratulate you upon the lightness of the calendar. So far ns numbers are concerned there is nothing to com pi in of; there are only nine prisoners altogether for trial. As to the crime to which I have just alluded, it appears that on the night of the 31st of August last, beipg Sunday, the police authorities at Clydehadplacedin one of the cells of thelockup at the amp a very large amount of gold and notes, received from two banks in the neighborhood, for safety until the following morning—the following morning being the appointed time for the departure of the Escort for Dun d n. When the constables visited the cell in which the gold had been deposited they foiigd that two of the boxes containing something between L 13.000 and 1.14,000 worth of gold and notes were gone. Investigations then took place, and for a very considerable time—l think not until the 13th August—scarcely any clue was obtained leading in any way to the discovery of the delinquents. However, circumstances gradually arose which cast suspicion upon one

man, and upon being arreted lie made a full and perfect disclosure df the whole circumstances of the robbery. Now one peculiarity in the case, when it comes before the Court and a petit jury, will be to determine what credit is to be given to bis testimony ; but this not a circumstance which has now to be considered. It is a practice in the criminal courts in England—and in all those colonics following their practice—for a judge to warn the petit jury that unless the approver —that is the participator in the crime who terns Queen’s evidence —is confirmed in some material circumstance connecting the prisoner, or prisoners, if there be many, with the offence, the jury ought to reject Ids testimony. As you a ,- e aware under ordinary c'rcumstanccs the testimony of one witness is sufficient to convict of most crimes—there are one or two notable exceptions but as a general rule one witness is sufficient. The question is usually put in the shape so as to invite them to consider carefully circumstances of confirmation. If those c’rcumstanccs are not, in the estimation of the jury, sufficient, they arc usually directed they may acquit. I need not go into the fine shades into which these decisions have led. It is sufficient for me to remind you that your duty is not to consider those little circumstances or those greater circumstances which may be set up as matters of defence. Your function is simply to enquire whether a sufficient case is made out by the Crown to induce you to call upon the prisoner to answer, and if you are satisfied to: that extent, you ought to find a true bill, Now go far as your functions are concerned, the evidence of the approver will no doubt be deemed to be sufficient, leaving it to the petit jury and tiro Court here to consider whatever circumstances —whether of confirmation, or non-confirmation, or otherwisecan be urged in the prisoner’s favor. This robbery’appears to have been planned for a very: considerable time, and so far as the evidence of Rennie, the approver, is concerned, it appears to have originated with the prisoner. It was effected in this manner. It appears there are two doors to the cell—an inner and an outer door. The outer door was fastened with a padlock, or something like a padlock, and the inner door with 'a metd bolt plate, fastened with four screws. This was fastened by an ordinary lock. An entrance was effected, and two boxes containing gold and notes, as 1 have already mentioned, taken away. Shortly afterwards the two empty boxes, cleared of their contents, were found in a waterhole hard by, and the greater part of the property has since been recovered through th instrumentality of the witness Rennie, who will be caked b.fore yon, and who, after making the disclosure, took the police to the different places where in their language the gold was “ planted,” in four different parcels. I believe there was a small .deficiency of notes, but whether that deficiency has been made up I am not aware, nor indeed is it important for this investigation. I think you will find upon the evidence of Rennie, the approver, quite sufficient to enable you to find a bill. Now, gentlemen, all the other cases are crimes of the usual nature brought before this Court, and require very little observation from me. There are four cases of larceny, upon which I do not intend to touch at all. There is a case against a man named Paterson for burglary which seems very clear. This burglary was committed at a house kept by a mau named Malloch. He heard a noise one night, got up, struck a light,- and called out, but no answer was made. He searched about the house, but nobody was to be found. He had,, however, some suspicion, and set two of his men to work to try and find out the person. Ido not know that the evidence as to breaking into and entering the dwelling is very clear ; bub you will allow that to be settled by the petit Jury. Malloch went out, and on his return he found the prisoner in the custody of bis two mon, Ho gave up LQ or 1-7 worth of silver which he had taken from the bar, two pair of socks, a waistcoat, and I think a watch which can be identified. This, therefore, seems to be something like an admission of his guilt. He was afterwards arrested by a police sergeant, and said, “ I know all about it,” or something to that effect. There can be no doubt that whatever circumstances can be alleged in the prisoner’s favor, on the face of it, that evidence is sufficient to find a bill. There is also a case of forgery by a man pamgd Taylor, who obtained money from an innkeeper of Oamatu. He presented a cheque purporting to be signed by Charles Tiscbmaker on Messrs Oalgety. Rattray, and Co. First he presented the cheque at the Bank of New Zealand, where they refused to give cash for it The prisoner then took it to an innkeeper who advanced the money—Ls—upon it. The innkeeper placed the cheque in the hands of bis banker for collection, and on presentation to Messrs Dplgpty, Rattrayi and Co., it was refused. Mr Tcstchmaker never having drawn on Messrs Dalgety, Rattray, and Co. Mr Fenwick, on looking at-the signature, also recognised it as the handwriting .of Taylor. There’is another case of embezzlement with which you will have no difficulty. Latterly the law has made embezzlement a statutory offence, not a crime at common law. ’ The requisites to it arc that the person charged shall be a clerk or servant, reooivjpg mppey,. and .in breach of that employment, appropriating it tq hia own use. In tbH ease the prisoner was rate colh-ctor to the Municipality of Lawrence. A rate collector is a servant, and in that capacity he received money ferrates which he did not account for. 1 need not tell you that that is sufficient to constitute the offence. As to the other cases they need no comment from me. You will therefore now retire. STEALING. David Storey was indicted for having, on the 11th October, ISG9, at Switzers, stolen a watch, chain, and ring, the property of ofic Henry IClaarsop. Ho was undefended. He had been in the prosecutor’s employ for a week, and shortly after his discharge the articles mentioned, which had been kept in an unlocked box in a hut occupied by botli men, were missed. Some time afterwards prisoner was arrested on another charge, and then the police discovered the watch on a shelf in his house, although he had previously stated he only possessed the one ho was then weaving. At the magisterial enquiry he said lie had purchased it frpm one Parker. The jury, after a short retirement, brought in a verdict of guilty, FORGERY AND TJT IT,RING. Samuel Taylor was indicted for having, at Oamaru, on the ISth June, forged and uttered a cheque with intent to fraud. He was - •-L : ;

He warfmihd guilty'-aiid temanded for sentence," ■ - ;

EMBEZZLEMENT." • • Frederick Laugc pleaded guilty to two

charges of embezzling monies, the property of bis employers, the Corporation of Lawrence, anti was remanded until to-morrow for sentence. BURGLARY. James Paterson was convicted of the minor offence of larccney at Kyeburn, and was remanded for sentence. The Court then adjourned.