SUPREME COURT.

Globe, Volume VIII, Issue 943, 3 July 1877, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. Monday, July 2nd, 1877. [Before his Honor Mr Justice Johnston.] LAHCENY. William Douglas and John Wilson were indicted, the former for having on the 15th January stolen certain goods, the property of Charles Gosling, and the latter with having received the same knowing them to be stolen. The prisoners, who were not defended, pleaded " Not Guilty." From the statement of the case by the Crown, it appeared that the prosecutor Gosling came to the Warwick Hotel, where he got the worse'for liquor. There he lost his watch and other articles. Some time after this the prisoner Wilson offered the watch for sale to Detective Walker in the White Swan Hotel. Detective Walker then arrested him, and charged him with stealing it. Wilson said he never stole it, but that another man gave it to him for sale. He said that it was "crooked," and that he undertook to put it off for him. Detective Walker said if he described him he would endeavor to get hold of him. He then described the prisoner Douglas, who was afterwards arrested on the charge. In support of the charge, Detectives Neill and Walker and the prosecutor, Charles Gosling, were called. The jury, after some consultation, returned a verdict of " Guilty " against both prisoners, as against Douglas for stealing and Wilson for receiving the property. His Honor sentenced the prisoners as follows—Douglas to twelve calendar months, and Wilson to the same. THE LATE COUNTERFEIT COIN CASE. Mr Garrick said that Reese desired to withdraw his plea of "Not Guilty" and plead " Guilty." The lad was one who had. borne an excellent character, and had been most carefully brought up. He was afraid it; was a case of yielding to sudden temptation. He proposed to call evidence as to character. His Honor —There is no suggestion, Mr Duncan, that this is an ordinary coining case. Mr Duncan —Not at all, your Honor. I cannot tell what could have induced the lad, whom I have known for so many years, to do such a thing as this. Mr Garrick—l may say, your Honor, that I believe it was only done to see if it could be passed, as the lad went down the next day with money in his pocket to pay the man the change. I should like your Honor to put a witness into the box to prove that when the lad tendered the spurious coin he told him it was a joke, and that it was only a button. His Honor—The difficulty is to know what to do with this case. Mr Garrick —Has your Honor not power to send him to a reformatory ? His Honor —No, Mr Garrick; he is over sixteen. Besides one docs not know sufficient, of these institutions to take tins course without further knowledge. Ido not feel inclined to put you in a gaol with common felons. Don't let it go forth to the world that our lads of sixteen years of age do not know that such a thing as you have been guilty of is an offence. You have been guilty of a very grave offence, leading out of what is known as larrikinism. The sentence lam going to pass upon you will be such I think as will deter any other young people from committing such an offence. lam treating it rather as a joke or attempt to " try it on," arising out o!; the facility given by foolish tradesmen by vending articles resembling coin to weakminded or persons to attempt to pass them as coin. The sentence of the Court is, that you be imprisoned for a fortnight without hard labor, and that two days after you go into prison you pass twenty-four hours in solitary confinement; also, that, two day 3 before your time expires you pass twentyfour hours in solitary confinement. This wdl afford you ample time for reflection, and

I trust, enable you to come out of prison with more correct ideas of life than you now have. The prisoner was then removed. OBTAINING GOODS UNDER FALSE PRETENCES. Elizabeth Bryan alias O'Brien was indicted for having, on the :3th March, fraudulently obtained certain goods from one T. Kinnerly, at Akaroa, on the pretence that she had a quantity of produce for sale. The prisoner, who was undefended, pleaded "Not Guilty." The case for the Crown was that the prisoner pretended to the prosecutor that she had a lot of butter, eggs, honey, &c, to dispose of, and the prosecutor agreed to b.iy the articles at certain prices. On the strength of this the prosecutor allowed the prisoner to take away a considerable quantity of goods — comprising drapery, &c. On inquiry being made it was found that the prisoner had no butter, eggs, or honey for sale. Mr Duncan called the prosecutor and Mr Pawson to support the case. His Honor pointed out that so far as the evidence went there was no proof that the prisoner had not possessed the butter. Besides this there wa,s no evidence that the goods had not been received by the Christchurch firm, of whom Kinnerly was the agent. There was no evidence to show that false presences had been the means of getting the goods. Mr Duncan said if the evidence of the Christchurch firm bad been taken that would only be proof of no:a-shipment of goods, and not that prisoner never possessed the alleged produce. His Honor said the pretence had been proved but not the falsity. The Crown had to prove that it was so, and not having done it the Court had no alternative but to direct the jury to return a verdict of not guilty. The jury then returned a verdict of " Not G-uilty," under direction of his Honor. TRUE BILLS. During the day the Grand Jury returned true bills in the following cases : —Regina v Peter Christie, housebreaking ; Regina v W. Douglas and John Wilson, larceny ; Regina v Anthony Ferrick, larceny of a valuable security ; Regina v James Reese, uttering counterfeit coin ; Regina v Elizabeth Bryant v O'Brien, obtaining goods by false pretences; Regina v Margaret Henderson, perjury. NO BILL. In the case of Regina v Alexander and Robert Sharp, sheeyjstealing, the Grand Jury returned no true bill. NOLLE PROSEQUI. In the cases of Regina v Craig, uttering a valueless cheque and Regina v Elizabeth Adams, the Crown prosecutor entered a nolle prosequi. REGINA V "WOOD. In this case, which was a prosecution for an assault with intent on a child of tender age, His Honor said lie had examined the child ns to her knowledge of an oath as required by law. He found a truly lamentable state of things. The child, though nine years of age, ; could not read nor write, nor could her! father or mother. They never said any prayers nor did she. She had heard her father speak of Jesus Christ but did not know who or what he was. The law stated that the requirement was that the proposed witness should have some belief in a future state of rewards and punishments, and on questioning the child on this point she said that she believed that those who were good would go to God, whilst those who were wicked and told lies would go into a big fire. Under these circumstances lie thought her evidence was admissible, and would therefore allow her to go before the Grand Jury. It was certainly a most lamentable state of things to find such utter ignorance prevailing in a country like this, where the facilities for obtaining education were so great. Wednesday, July 3. [Before His Honor Mr Justice Johnston.] The Court re-opened at 11 a.m. TRUE BILL. In the case of Regina v Woods, attempted rape, the Grand Jury returned a true bill. The Grand Jury were then discharged without making any presentment. PERJURY. Margaret Henderson was indicted for having, before Justin Aylmer and George Scarborough, at Akaroa, on the 4th May last, in the case of Watkins v. Adams, committed wilful and corrupt perjury. Mr George Harper, with him Mr James S. Williams, appeared for the prisoner. Mr Duncan appeared to prosecute on behalf of the Crown. The prisoner pleaded " Not Guilty." Mr W. S. Sparks was chosen foreman of the jury. Mr Duncan having briefly stated the case, called the following evidence : James Hentley deposed to being the bailiff at the Resident Magistrate's Court, Akaroa, and to administering the oath to the prisoner on the 4th day of May, in the case of Watkins j v. Adams. j Cross-examined by Mr Harper—Mr Scar- j borough was sitting at the time. He is Mayor of Akaroa. ; Justin Aylmer —I am Resident Magistrate , for the district of Akaroa. I was so acting on the 4th May last. There was a civil case of H. G. Watkins v. Thos. Adams which came on for hearing that day. It was for £4013s 9jd. I produce the summons. Mr Harper objected to the production of the summons. The witness should produce the plaint book, which was the origin of all proceedings in the Resident Magistrate's Court. His Honor thought this was not necessary. The summons produced was the original document. Mr Harper would quote authorities on the subject. [Authorities cited—Sec. 31, R. M. Act, 1867 ; Russell on Crime, vol. 3, pp. 96.] [Cases quoted —Reg. r v. Rowlands, 1 F. and P. 72 ; Reg. v. Howell, 3 F. and F., 271.] In these cases it was held that the proper evidence must be produced. The cases he had cited had taken place in the County Courts, which were analagous to the R.M. Court here. It was held by Baron Bramwell that the proper and only evidence was the clerk's plaint book, and the case was adjourned for its production. He submitted on the authority of the case of Regina v Rowlands that the plaint book should be produced, as being the best evidence procurable. He submitted that the production of the summons itself was secondary evidence. The Resident Magistrates' Act was explicit on the point that the plaint hook was the record. It was a peculiar thing that the Resident Magistrates' Act did not provide any means for the entering up of judgment. The plaint being the foundati' of the writ, and no means being provided ■ or a certified copy being provided, he contended that the plaint book was essential. Besides this, the clerk was not present, whose duty it was to take down the particulars, and the

summons now produced might not be right. His Honor would see that one item on the bill of particulars was the foundation of the charge of perjury, and it was essential to the defence that the fullest and best evidence should be produced. Mr Duncan contended that the summons, to which was attached the original account, was sufficient to prove the judicial authority. His Honor —But, Mr Duncan, do you think that the magistrates could legally hear the case unless the plaint is entered in the book ? Mr Duncan —The summons, your Honor, is what the magistrates adjudicate.

His Honor —Not at all. The summons merely proceeds from a plaint lodged in the Court, and is only a document citing the defendant to come into Court. A summons not founded on a plaint does not give legal jurisdiction.

Mr Duncan —But I have proved the plaint. His Honor—Not at all. The plaint is in a book, and how can Mr Aylmer give secondary evidence of what is in the book.

Mr Duncan —Well, your Honor, if the Resident Magistrate stands down I will prove the plaint. His Honor —If you do not succeed in proving the plaint by sufficient evidence Mr Duncan, you cannot ask me to adjourn the case. The prosecution should take the proper precautions to bring the case into Court. The witness Hartley was re-called, and stated in reply to Mr Duncan that lie had not brought the plaint book. His Honor said that by the way in which the prosecution were conducted, the administration of criminal justice ran considerable risk of being jeopardised. It was not the fault of the gentlemen who acted as Crown Solicitors and not as falsely called, Crown prosecutors. It was the fault of the system in not providing some means for the conduct of prosecutions through the Resident Magistrate's Court and up to the Supreme Court. If there was a competent legal authority to prepare the cases for the Crown Solicitor and see that the necessary documents, &c, were prepared and sent forward, and also that the necessary steps were taken to prevent a, defeat of justice, these difficulties would not arise. The system was radically bad and until some steps were taken to prevent public justice being defeated by want of system, it would certainly be running a risk which he thought they should not do. In reply to His Honor,

Mr Duncan said that he did not consider himself justified in interfering with the case in the Resident Magistrate's Court. His duty only consisted in taking charge of cases when before the Supreme Court. His Honor —The Avhole system is radically bad. Who was bound over to prosecute ? Mr Duncan —Mr Aylmer.

His Honor—Then, Mr Aylmer, the whole legal responsibility rests on you. It certainly does seem a most extraordinary thing that a magistrate shoidd be bound over to prosecute. However, Mr Harper, I think in this case in order to prevent a defeat of public justice, we will allow the case to go on taking a note of your objection, and I will eonsider it later on. Mr Harper Very well your Honor. Though of course I do not abandon the point taken by me. Witness—l produce a summons. His Honor—What is that. Is it the original summons ?

AVitness—No. It is a copy. There are two summonses issued; one is kept in the office, and the other issued by the bailiff.

His Honor—But the Act does not provide for two original summonses, Mr Duncan. This is not evidence. What other documents have you Mr Aylmer as evidence ? Witness —None your Honor but the summonses. The judgment has been entered in the plaint book. His Honor—Exactly; and the only document of legal value is left behind. This arises out of the system to which I have referred. The whole of these difficulties arise out of the want of a competent legal authority to prepare the case for the Crown Solicitor and bring it from the lower Courts to the Supreme Court. Mr Duncan, I understand you do not consider that you are at all concerned in the case until it comes into the Supreme Court. Mr Duncan—That is my position your Honor.

His Honor—Have you any authority to show me that you can proceed with this case on secondary evidence, such as this now sought to be given ? Mr Duncan—No, your Honor, I cannot. His Honor —Well, the question now is, am I to allow a gross failure of public justice ? Of course, gentleman of the jury, I am not expressing any opinion on the merits of the case, but on the face of the matter it looks like a failure of justice. Was the plaint book produced before the Magistrates, Mr Avhner ?

Witness—Yes, your Honor. His Honor—How soon could you get that book ?

Witness —It could be here by four o'clock to-morrow afternoon.

His Honor—ls there a seal to your Court P Witness —No, your Honor. Mr Harper—l may say, your Honor, that in all previous cases here the plaint book has been produced. This w r as done in the case of Regina v, McNicol.

His Honor —l really cannot allow the case to go over like this, Mr Harper. Mr Harper —But, your Honor, in the case I last cited the place where the documents where was as near as Akaroa is to Christchurch, and yet the learned Judge directed an acquittal.

His Honoi'—l think I must test this document a little further. Let me see the summons. This is not a return at all. There is an affidavit of service. This document remains in the office, and the copy goes to the party — that very document is served upon the party and the return of service is endorsed on the one kept in the office. Is that so, Mr Aylmer ? Witness—Yes, your Honor. His Honor—Where does the bill of particulars come from ?

Witness—The party lodges two bills of particulars at the time of taking out the plaint, under section 31 of the Eesident Magistrates' Act.

His Honor—The practice you have stated may be convenient, but it remains to be seen if it is legal. Who fills up these summonses ? Witness—The clerk to the Bench. His Honor—Did you compare the bills at the time ? Witness - I did not.

His Honor —Well, you sec, Mr Duncan, the witness cannot even give proper legal evidence of the summons. We must adjourn the case. I wish I could make some one's pocket feel it. In the meantime it is only the public who will suffer. I do not intend to allow the case to go off on this point.

Mr Harper—l may state, your Honor, that I have several other objections to take, one is to the indictment itself after the evidence is taken.

His Honor—Then, 'perhaps, that will dispose of the case without the need of an adjournment.

Mr Harper—l hope so, your Honor. His Honor —Then I will allow the case to go on in the meantime. Examination continued—The plaint was for drapery supplied by the plaintiff. The prisoner was a witness in the case, and gave evidence for the plaintiff. I took notes of the evidence at the time. [Witness here read extracts from his notes of the evidence of the prisoner.] I have no note whatever about a black satin petticoat alleged to have been bought at the store of Mr Watkins by prisoner. There was a black petticoat sued for.

Mr Duncan—What was the result of the case ?

Mr Harper objected to the witness answering specifically. The plaint-book was the best evidence. Ho would not object to the witness stating generally the effect. Witness—l gave judgment for the- defendant.

Cross-examined by Mr Harper —I had jurisdiction up to £SO at the time of the case being tried. I cannot produce the proclamation. Mr George Scarborough sat with me that day. He is Mayor of Akaroa, and the judgment given in the case was the judgment of both. Mr Scarborough concurred in the judgment, ar.d I delivered the judgment as that of Mr Scarboi-ough and myself. Both plaintiff and defendant wore represented by counsel. The goods represented in the bill produced were proved to have been supplied by Mr Watkins to somebody. The goods were not proved to be supplied to Mr Adams, the defendant. They were proved to have been supplied to Mr Adams and the prisoner. Mrs Adams!was the wife of the defendant, and the prisoner his adopted child. The goods supplied chiefly consisted of drapery. We considered that the goods were not necessaries. Our chief reason was that the goods had been supplied clandestinely to Mrs Adams. She had a private arrangement with the storekeeper unknown to Mr Adams, and a private bill was kept. The goods mainly passed through the hands of Maggie Henderson. Mr Watkins proved the delivery of some of the goods to Maggie Henderson, as also did several other witnesses. I believe I issued a subpoena in the middle of the proceedings calling upon Mrs Adams and Maggie Henderson to attend to give evidence. I think it was at the instance of the plaintiff's solicitor. The prisoner was examined by the plaintiff's solicitor. There were two solicitors for the plaintiff. One appeared for him, and the other to watch the case on behalf of some one in Christchurch. There was only a single plaintiff and defendant. The second did not examined the witnesses. He examined the prisoner. T cannot say whether he examined her in chief or in cross-examination. His Honor—l cannot understand how you could allow any one who had no locus standi in the Court to examine a witness. Perhaps you will explain. Witness —The names of certain persons whom, he represented came up in course of the trial. I allowed this solicitor to cross examine Margaret Henderson. I asked the prisoner a few questions. I did not take the chief part in the examination of the prisoner. I made her repeat her answers two or three times, so as to be sure that she was right. She was not told that her evidence was to be discredited. I will not be certain whether it was at the adjourned sitting or not, that supcenas were issued for other witnesses. I know Mrs Adams, the wife of defendant. She was committed for trial for perjury. I expect she went through the same examination that Maggie Henderson did. Mr Harper —Now, Mr Aylmer, will you charge your memory whether the prisoner was ever asked the question if sk" had bought a black petticoat atWatkin's store. Witness—l cannot say, but I think Mrs Adams was. I find on reference to my notes that she was. She stated that she never saw a black petticoat, and that if Mr Watkins said she had done so lie spoke falsely. I cannot find anything in my notes to the effect that the prisoner stated she never bought a black satin petticoat. I cannot say whether she was ever asked the question. I think Mr Watkins said that prisoner bought a black petticoat. This was at the time of the enquiry. I don't think Mrs Watkins was examined at this time. I don't think that the attention of the prisoner was ever directed to the item in the bill referring to the petticoat. Mr Watkins stated that there was a private account kept by Mrs Adams. The conclusion the Bench arrived at was, that Watkins knew that Mrs Adams was getting goods without her husband's knowledge. The first date is May, 1875, and the last November, 1876. According to the bill the petticoat was said to be supplied on July 12th, 1875. Some little time after the commencement of the case there was some discussion as to the jurisdiction of the Court to entertain the case. Mr Williams objected on the ground that the claim could not be divided, and that certain articles coidd not be taken out, in order to bring the case within the jurisdiction. The prisoner constantly called Mrs Adams her 'ma. So far as I know Mrs Adams is not prisoner's 'ma. H. G. Watkins —The prisoner came to my store and asked me if I had sold a black satin petticoat which her ma had looked at, and I said no. She said, " Well I want it." Mr Adam is a clerk, auctioneer, woolgrowcr, &c. The prisoner took the petticoat away. The petticoat was taken away on the 12th July, 1876. The account commenced in May, 1876. The entry of the petticoat was made by me on the 12th July, 1876. My wife was present at the time the prisoner took the petticoat. Cross-examined by Mr Harper—Both bills produced are in the handwriting of my son. JMy son assists generally in my store. lie has access to my books. liegis eighteen years of I age. The bill produced was f unused by me to Mr Thomas Adams. From the Ist June mentioned there it should have been written 11876 instead of 1875. I was not in Court ' during the whole of the trial. I heard the prisoner examined partly.

Ee-examined by Mr Duncan—l believe the prisoner was asked about the black satin petticoat, and that she answered she had never been in my store.

Cross-examined by Mr Harper —I cannot swear that the prisoner was asked anything about a black satin petticoat. I have not a very good memory. Elizabeth Maria Watkins—l am wife of the last Avitness. I remember 12th -Inly, 1876. I know the prisoner. I saw her in inv husband's store on that day. She said — "Ma wants to know if you have sold the black satin petticoat she had to look at

before." Mr Watkins asked me if I knew whether it was sold. I told him where to look for it, and he found it and gave it to prisoner. It was rolled up in a parcel with some other goods, and she took it away. I was not present at the hearing of the case of Watkins v Adams.

Cross-examined by Mr Harper—l was not called on as a witness in the civil case.

Mr Duncan—l now ask your Honor for an adjournment of the case to produce the plaint book. There are no more witnesses.

Mr Harper—l oppose the adjournment on the authority of the case of Regina v Rowlands.

His Honor—The question for mj consideration is whether I shall direct the jury to acquit, or adjourn the case for the completion of the evidence by the production of the plaint book. I think Mr Harper on the whole as perjury is such a bad offence that I can hardly allow this case to go over on account of a radical defect in the system. Beyond this — and I do not refer to the Crown Prosecutor — there lias been individual neglect. Gentlemen of the jury I think you will agree with me that perjury is such a grave offence that I should not be doing my duty to the public if I allowed the case to go without making an effort to vindicate public justice. Therefore I shall adjourn the case until Thursday at 10 a.m., when you will have to attend. On the application of Mr Harper, the same bail was accepted for the appearance of the accused on Thursday next. FORGERY. Mr G-. B. Hall was indicted on two charges of forgery and uttering. The prisoner, for whom MrJoynt appeared, pleaded "Guilty" to the first, and " Not Guilty " to the second indictment. A jury was empanelled to try the second case, of which Mr G. W. Geddes was foreman. The Crown Prosecutor not offering any evidence, His Honor directed the jury to return a verdict of " Not Guilty." This was done, the jury returning a verdict of "Not Guilty." Evidence was then taken as to the character of the prisoner. Harry Feast deposed to knowing the prisoner for many years. He had held good positions, and nothing had been heard against his character until this case. His Honor postponed passing sentence till after the next case. RAPE. George Wood was indicted for an assault with intent on Petia Petersen, a girl of nine years of age, at Akaroa. The evidence was unfit for publication. The prisoner, who was undcfended, pleaded "Not Guilty." [Left sitting.]