SUPREME COURT.

Evening Star, Volume VIII, Issue 2512, 6 March 1871, Page 2

SUPREME COURT.

CRIMINAL SESSIONS,

This Day.

(Before Mr Justice Chapman.)

The March Criminal Sessions were opened this morning at 10 o’clock. His Honor, in his charge, congratulated the Grand Jury (of which Mr H. Houghton was chosen foreman) on t!ie unusually light calendar of prisoners for trial. During the last year the calendar had ranged from seven to eight, l ine, or ten cases, and in one instance to fifteen, but on that occasion there were included two or throe cases that really ought not to have been sent before the Supreme Court. The present was the lightest calendar there had been since the discovery of gold. The first case to which he should call attention was that of William Day, who was charged with burglary. Now, burglary, as the jury were aware, consisted of the breaking into and entering the dwelling house of any person during night time, with intent to commit a felony. It was not ab ointely necessary for the completion of the crime of burglary that actual stealing or a-tanl felony of any kind should take place : intent was sufficient, but of that the jury must be convinced. There was a doubt in this case whether the breaking into was between those hours which constituted burglary, viz., nine o’clock in the morning and six in the mo’ning; and, therefore, he understood the Crown Prosecutor had very properly prepared two bills—one charging the prisoner with burglary, and the other charging him with entering a dwelling house with intent to steal, which might be during day time. There was one peculiarity about the breaking into which it was necessary he should call attention to. The evidence was to this effect : The prosecutrix, M>s Dale, was disturbed after she had got into bed ; she heard something or somebody upon the roof of the house, and she heard the boards of the roof forcibly torn away. Shortly afterwards she saw the limb of a man through the canvass ceiling ; she was not alple to say whether it was a leg or an arm, but she swears distinctly .she saw a limb. She jivmpcl out of bed, called out —screamed out possibly—whereupon prisoner desisted from entering by .the top of the house, withdrew his leg or arm f.r mi the hole, got down and met her at the door. Then a colloquy occurred, the prisoner using violent language. They would be invited from the conversation that took place .to infer what the prisomf's intention was. All that he had to point out was that that catering was sufficient in-the eye-of ttbe ’law to constitute a burglary. But'if the jury iverc not satisfied as to the time, they would find the other bill and reject (that for buqjhry ; but if they thought a prhua /ctde case was made out for the burglary, they must find that bill. The next.case to which he would call attention was that of George Murdoch, who was charged with assaulting and robbing one Edward Janies Sanders upon the common highway. Now Sanders described himself as a sjjyveyor; and he and the prisoner had been drinking together at a public-house. He thought there was evidence to show that the prosecutor was not sober. They left the public-house together, and the pjrogecutor swore that shortly afterwards he was assaulted and robbed. It would be found that the prosecutor’s evidence was very confused, and there was no doubt that that confusion arose from his state of drunkenness. Cases were often brought before that Court in which prosecutors hardly knew what took place. The question for the jury to consider was whether the prosecutor was in a state of half g .briety, half-drunkenness, as would enable him to know what went on. Perhaps he was wrong in saying drunk, because although one heard of a person being spoken of as being drunk in common conversation, yet strange to say, when witnesses came before the Grand Jury and the Court, they generally used modified language, leaving it for I the jury to determine the degree of drunken- ; ness. Of course that confusion was not ex- i cased by the fact of the prosecutor having been in a half-drunken state, but it was a ! circumstance enabling the jury to say whether they believed his story or not. If thay believed Saunder’s story, that he was . actually assaulted and robbed by the prisoner. they would of course find a bill. : There were no doubt other witnesses who, to some extent, confirmed the prosecutor in several collateral circumstances—not in the main fact, because that happened when there were no witnesses. The next case was that of George O’Brien, for larceny. This again was a case in which the prosecutor was considerably advanced in intoxication ; he described himself as “ njvrddled ” —which was one of these medium phrases which witnesses, especially prosecutors, were apt to use. He had L 23 in his possession. After drinking at a public house, he retired to bed, placing his coat, in which was his money, over his legs. When he got up in the morning his money was gone, A sort of hue and pry was raised, .and the prisoner became suspected, from the fact that he changed cither a L 8 or a LlO note. There was some evidence to show that be had a little money—not any considerable sum—he had L 3 or L 4 in his possession. That circumstance was always one which the jury could take into consideration as lending some degree of improbability to a doubtful story, because a

man who bad money had no great temptation to steal from another, unless he wore a professed thief. The doubts in this case arose from the imperfect identification of the money. Unless that money was identified to the perfect satisfaction of a petty jury, they would not convict; but he did not mean to say they would require that exactness ; they were simply required to see that a prima facie case was made out sufficient to call upm the prisoner to answer. If they thought the partial identification of the money—for there was some identification —was sufficient to call upon the defendant to answer, it would be their duty to find a bill. The other case of felony was of John Russell, who was charged with obtaining LI under false pretences. The felony was this ; Prisoner applied to the prosecutor for the money, stating that he was a surveyor for the Government, bad a job of 2,0;)0 acres, and that he had to receive LI 10, “ whereas,” in the words of the indictment, “in truth and in fact, ho had no such engagement or such right to receive the money.” That was a sufficient false pretence, if the jury were satisfied that the prosecutor had parted with Lis money under the pretence ma le, and nothing else. Ihe ast case was one of misdemeanor. A man named Hare was charged with perjury. It was really a very trifling case. He had appeared before the Magistrate as defendant in a case for wages. A receipt was produced which ho stated he had given. That was true. But in cross-examination he was asked if he had given any other receipt, and he said he had not. It turned out that be had given the same person anothei receipt, and so far as appeared from the depositions, it had reference to some ct tirely different transaction. He (the Judge) certainly confessed, and could nob help expressing, some surprise that the Magistrate did not give the defendant the benefit of the doubt, and abstain from imposing considerable expense upon the Government in bringing down the case from Clyde to Dunedin. The case was hero, however, and it was for the jury to consider whether there was sufficient evidence to call upon the defendant to answer. The elements necessary for conviction for perjury were these. In the first place, it must be before a competent tribunal, one having jurisdiction to hear and determine in the case ; next, the person administering the oath must be authorised to do so. Both these elements were in this case. The great question was whether the false swearing was material to the issue before the Court ; that was the issue forthc jury to determine. ROBBERY FROM THE PERSON. George O’Brien was indicted for having at Papakio on the 12th inst. sto'en L 23, the property of one John White. Mr B irton defended. The facts of the case, as stated by the Crown Prosecutor, are as follow :—The prosecutor is a laborer, and arrived in this Province from Canterbury on February 12, and put up at Raynor’s Hotel, Papakio. He then had in his possession one LlO note, two L 5 notes, and three LI notes. He was unable to identify them beyond that they were Canterbury notes, and he recollected distinctly that this numbers of the notes commenced with the figures 04 ; and sprue of the notes produced commenced with those numbers, and were Canterbury notes. The prosecutor appeared to have been drinking that day with the prisoner amongst other persons. He “shouted” for him, and in paying for the drinks ordered, took a Ll note from his purse, and on that occasion the prisoner had an opportunity of seeing fts contents. Prosecutor returned his purse to the breast pocket of his coat, where ho usually kept it, and went to bed. His two mates slept iu the same room, the prisoner sleeping in a room but a few feet distant; hut thcdopiv of neither room were fastened When going to bed prosecutor placed h : s coat over his fet; when he woke up in the morning he found the coat removed from the bed and the money missing. He at first thought that' his imfes had taken it to take care of, but finding that it was not so, he communicated Ids loss to the landlord. On the same day that the .prosecutor at the hotel, (he prisoner algo arrived. At tfyat (time jfclio latter gave tfie landlord a LI note, saying that was all he had. Ho spent a good deal that day, the landlord thpmdxt to’ the amount of LI. On the following Monday prisoner spent another Ll, and on Tuesday spent a good deal. On the afternoon of that day he told the landlord that all his money was gone, and asked for credit, which was given him t) the extent of lls Gd. Later in the day prisoner produced a Ll note, telling the landlord to take out of it what he owed. ’I he latter noticed that he had mqre notes in his hand, and that the Ll note was a Christchurch one. This coupled with the fact of the prosecutor’s loss led him to watch the prisoner. About an hour afterwards prisoner went to bed, and shortly afterwards the lan Mord went up to him and asked him how much money he had got. He replied none. The landlord then asked him what he had done with the notes he had in his hand when he gave him the Ll. aud he replied he had no other notes. The landlord then searched the prisoner’s clothes and in his pocket he found a LlO note, two LS notes, and two Ll notes, which, with the note the prisoner changed) made the exact amount Ips.t by the prosecutor. When asked where he : got this letter, prisoner answered “ that was his business.” The jury returned a verdict of “Not guilty. ” ENTERING A DWELLING-HOUSE. Wiliiam Diy was in Hote l on the lesser charge of feloniously entering the dwelling of Mrs Day. A verdict of “ Not guilty ” was returned. f.ORBEKY. “No true bills” wore returned against Jylm Russell and James Hare. The Grand Jury, before separating, made a presentment congratulating his Honor on the lightness of the calendar, ami expressing their opinion that the two oases thrown out might have been decided by the R. M., and the Colony saved the expense of sending them for the trial.