SUPREME COURT.

Globe, Volume IX, Issue 1201, 9 January 1878, Page 3

SUPREME COURT.

CRIMINAL SITTINGS. [Before His Honor Mr Justice Johnston,] Tuesday, January 8. The Court re opened at 10 a.m. CONSPIRACY. Michael Murphy, W. H. Wykes, and W. Hammill, were indicted for having conspired together to defraud the creditors of the latter. Mr Duncan, with him Mr Joynt, for the prosecution. Mr G. Harper appeared for Murphy, and Mr Izard for Wykes. Mr Harper took objection to the indictment, in that Hammill was bound over to prosecute. He should therefore apply under the second clause of the Vexatious Indictment Act, 1870, that the indictment be ([Hashed, on the ground that Hammill had not been jointly included in the commitment for the offence. The prisoners Murphy and Wykes having been committed for a conspiracy, and a third prisoner having been brought in, there was a fresh conspiracy ; indeed the prisoners might now be said to be charged with an altogether different offence from that upon which they were committed by the Resident Magistrate. His Honor said that as at present advised he was rather with Mr Harper, but still the point was one of very great importance. It would be better for the case to be proceeded with, and the point reserved. hat had the prosecution to say ? Mr Joynt said he should submit that the indictment might be a good one, though it might be void as regarded Hammill. So far as Murphy and Wykes were concerned the provisions of the Act had been complied with.

His Honor said that either the indictment was good or bad. Mr Joynt said this was a very important point, and ought to be fully argued. His Honor would reserve the point, and the case might proceed. The prisoners pleaded “ Not Guilty Mr Duncan entered a nolle prosequ i as regarded Hamiuill. The jury, under direction ot His Honor, returned a verdict of “.Not Guilty,” and Hamrnill was discharged, Mr Harper then raided the point that as three prisoners had been indicted for conspiracy and one acquitted, there was now only two, whereas the indictment contained three. It was resolved to leave this point to be argued at a later stage. Some discussion arose upon the point as to whether Hammill’s wife could be examined, and it was agreed to reserve the point. George Hamm ill deposed that he kept a store on the Whately road. His stock comprised oats, hay, chaff, groceries, &c. He commenced business without capital, and obtained goods from J. L. Fleming, Banks and McDougall, Clark and Son, D. H. Christie, and Anderson. He got about £/0 worth altogether. On the util October he called upon Murphy, and asked him to lend him £3O. [The remainder of the evidence in chief was similar in substance to that given in tho EM. Court.] . Cross-examined by Mr Harper—l was arrested at Lyttelton cm tho Btb October, if his was before I filed. i‘ | had fcakem my passage by a vessel to Sydney. ■ i I had about £2Q worth oJc goods and about £1 is aiooey

with me After 1 made arrangements with Murphy for the removal of my goods under the bill of sale I wrote to Mr Smith, asking him to let my wife have some goods. She got some from him. I cannot say what amount of goods my wife got. I believe I owe him over £lO 1 wrote the letter, asking Smith to lot my wife have the goods in the afternoon of the day on which the arrangement was made with Murphy. I don’t know wha r . the goods ultimately fetched at Mr Clifford’s. 1 did not attend the sale nor did I sec the advertisement in the newspaper. I went to Mr Dale to try and raise money unde 1 * a bill of sale. I went to Mr Dilc a day or two before 1 went to Murphy, f don’t remember what amount I asked Mr Dale for. There was no arrangement as to the rate of interest I was to pay Murphy. I never, in Wyke’s pretence, said I was going awa.y. Murphy never said anything to me about going away. Cross-examined by Mr l/.ard—l wont first of all to Muiphy to borrow money on a bill, and he said he would lend it me if I could get endorsements. 1 went to Mr Russell, but failed to get the bills endorsed. .1 had negotiations with Mr Dale about borrowing money on hills before I wont to him us regarded the bill of sale. Wykes took stock of the furniture, and Murphy put it down in his book. 1 told Murphy that I thought taking away the goods at- nine o’clock in the evening on Saturday was too early, because we wanted to rea’ise as much as we could. Murphy paid the carrier, I think 2ns, but am not certain. I got the coat I am wearing at Mr Walker’s on the Saturday after I had made the arrangement with Murphy. I have not paid for it yet. Re-examined by Mr Duncan —-The value of the property left over what 1 sold to Murphy would be about £2O. At this stage the case Avas adjourned until this morning at 10 a.m, Wednesday, January 9. The court ro-opened at 10 a.m. CONSPIRACY. The hearing of the case against Michael Murphy and W. H. Wykes, for conspiracy to defraud, was resumed. Mrs Hammill deposed to being present at the conversation bctAveen her husband and Murphy as to the sale of the goods. Wykes also was present. Murphy asked whether Hammill wanted to sell right out, as if that was the case he would buy him out. Hammill said no, lie only wanted to borrow money on the goods. Murphy then told him to come to his ollice the next day. Witness afterwards saw Murphy on Saturday at their shop, when he gave Hammill £B. Wykes was taking an inventory of the furniture. Murphy took a weighbridge and half-chest of tea as security for tlic £8 he had advanced. While Wykes and Murphy were present Hammill gave them the invoices of the goods in the shop. [The witness then detailed the circumstances attending the removal of the goods, her evidence being identical with that, given by her on the preliminary examination.] During the examination of this witness, His Honor raised the point whether Mr Joynt hud proved Wyke’s complicity with Murphy. If not —and he should like Mr Joynt to give him this point —any evidence of the witness against Wykes would not be admissible.

Mr Joynt contended that he had quite clearly connected Wykes with the conspiracy with Murphy. He was present during all the conversation on Friday between Murphy and Hammill. On the Saturday morning also Wykes was present when Murphy and Hammill were settling about the weighbridge and half-chest of tea. His Honor could not find on his notes any evidence which pointed to Wykps being present when there was any conversation relating to guilty knowledge. His Honor then read his notes of the evidence. Mr Joynt submitted that Wykcs being a party to the removal of the goods on Saturday night or Sunday morning, he was thus connected with the conspiracy. His Honor said that the law was that the conspiracy itself waa the criminal act, the actions springing from it being the evidence of its existence. He thought there something to go to the jury, but he shopld tell them that unless they found Wykes was connected with the conspiracy, and had a guilty knowledge, they must not allow the language of M urphy as regarded Wykes to inHuence them.

Examination continued —Murphy said, when the first dray-loud had gone, that it was a pity Hammill had not more goods in the shop. He said it was better to go in for a big thing, as people were always thought better of. They did not. weigh or measure any goods, Mir Wykes estimating the quantities as they were passed out. Murphy said that it would be better for witness and her husband to go out of the colony, like a man named Lennox. He advised Hammill to try Sydney or some of those colonies where lie would be free, and said something about a steamer going on Monday. The last load was taken away at daybreak on Sunday morning. Cross-examined by Mr G. Harper —We first spoke of going to Sydney on the Saturday night, or rather Sunday morning. Wykes was not present. This was the only conversation we had regarding going away. There was no conversation about going away while Wykes and Murphy were taking stock. My husband said be would think over Murphy’s proposition to buy him out instead of advancing him money on a bill of sale. We owed money to other creditors besides those supplying goods to the shop. I got some goods on Saturday from Mr Smith, but did not pay for them. The value of the goods was about f:S or £9. This was between 6 and 7 o’clock p.m. on the Saturday, We had the goods with us when we were going to Sydney on the Monday morning. My husband had tried to borrow money from Mr Dale before this arrangement. He also tried to borrow £3O from Murphy. This was before we commenced business in the shop. The chief part of our stock was h ay, corn, and chaff. 1 cannot say what was the value of our grocery stock. 1 should say from £l6 to £lB, but lam no judge. Those groceries only which had been opened were weighed, and the weights of the other goods were taken from the invoices. Murphy put down the weights and description of the goods as they went out. Wykes put down the goods from the invoices—those which had not been sold out of.

Cross-examined by Mr Izard—l got a suit of clothes from Mi Walker on the Saturday, and told the boy I would call and pay for them on Monday. William Clifford depose:} tbqt he was an auctioneer. On Saturday, bth October, about 5.30 p.m., he saw Murphy in witness’s saleyard. Murphy said he had bought the stock-in-trade oi a grocer awl wasted to stow it

there that night. He said he would keep the store open till nine o’clock, in order to sell as much as possible privately. After nine o’clock, he would have two drays, which would, he thought, take the whole. Witness sanctioned Murphy bringing the stock into his yard. He afterwards arranged with witness to sell the stock by auction. M itness heard that there was somebody at his store on Sunday morning, and he went, there about I a.m. He found Murphy and Wykes there together with a quantity of goods. Murphy and Wykes were preparing the goods lor sale. Witness told them that they need not trouble to do that, as he would do that. Murphy spoke of Tuesday or Wednesday as the day of sale, and the goods were sol'd on Tuesday. Witness received a list ot the goods from Wykes. Ue also got a power to sell from Murphy. The goods realised in the gross £47 17s. The charges were £•> 10s Od, the net being £42 tis 2d. Murphy hid for some of the goods. Cross-examined by Mr Harper —Wykes was not present at. the sale. The goods brought a good auction price, some realised over wholesale price. The prices obtained were fair auction prices all round. There was a fair attendance at the sale—perhaps thirty. The sale was advertised twice in both papers.

Cross-examined by Mr Izard —It is not unusual for goods to be brought into my sale room late at night. Witness thought that £32 for the goods was a fair price. Enoch Henry Banks deposed to selling a quantity of corn, hay, Ac., to Hammill in September, 1877. Hammill owed witness £2B 14s on 6th October.

Cross-examined by Mr Harper—Witness knew on the Monday of the goods supplied by him to Hammill having been sold to Murphy. Witness got out a warrant, and had Hammill arrested. He subsequently got a judgmentagainstllammill. Witness received £lol9s, the passage money which had been returned to Hammill, and was handed to witness by the bailin’. In Lyttelton witness told Hammill that he thought ho had been a tool in the hands of Murphy, and that if he would assist them to prosecute Murphy he would not prosecute him for fraudulent bankruptcy. Henry Joseph Clark deposed to Hammill being indebted to his firm in the sum of £IH Is 2d. I). H, Christie, J. Anderson, and J. L. Fleming gave evidence as to the amount owing to them by Hammill. This closed the case for the Crown. Mr Harper submitted that the case lor (.he Crown had broken down, and that the evidence led by the Crown did not support the indictment. The indictment stated that Murphy, Wykes, and Hammill, knowing that the latter owed money to certain creditors for merchandise, which was the sole asset in the estate, entered into a confederacy and conspiracy to defeat the just claims of Hammill’s creditors. He should submit that the gist of the indictment was that there had been a conspiracy between Hammill, Murphy, and Wykes, to defeat las creditors, and that Hammill should leave the colony without giving his creditors any valuable consideration. He should contend that there was no evidence brought forward by 'the Crown to support the gist of the indictment as pointed out by him. His Honor said that the common-sense view of the matter was that Murphy had, probably with the assistance of Wykes, conspired with Hammill to defeat the creditors of the latter. But what Mr Harper contended was that the evidence should point to the particular kind of conspiracy laid in the indictment. Mr Harper submitted that there was not any evidence led by the Crown that Murphy and Hammill conspired to defeat the creditors of the latter in the terms of the indictment by not paying any of them. His Honor wished to point, out to Mr Harper that lie should direct the jury that unless they were satisfied in their mind of the complicity of Wykes the indictment could not he supported, because Hammill had been declared not gqilty, and Murphy therefore could not alone he convicted of conspiracy.

Mr Harper then proceeded to argue that there was ho evidence to support the second part of the indictment, viz., the conspiracy to get Hammill to leave the colony. Without the conspiracy to induce Hammcll to leave the colony to defeat his creditors the transfer of the property would not. bo an offence at common Jaw. The conspiracy to induce Hammill to leave the colony made the transfer of the property an o ffenee at common law. They were bound by the indictment before them, and he submitted that the evidence of anything about leaving the colony pointed only —what there was—to having taken place after the conspiracy, if such existed, had been consummated. [Authorities cited—Wood v Dixie, 7 Q,.8., 192 ; Regina v Taylor on Evidence (new ed.) ; Regina v Peck, A. and E.] The learned counsel contended on all the authorities cited that, unless the Grown could show by evidence that Hammill was going to depart out of the colony, there was no offence at common law. But he submitted that the evidence did not support the indictment in this respect. His Honor pointed out that Hammill having been found “ Not Guilty,” the overt act. of the transfer was got rid of. Mr Joynt submitted that this was not so. The jury were bound to take the overt act as proved, but not against Hammill. Mr Harper contended that, so far as the law was concerned, the transfer by Haiumill was a perfectly innocent one, as the Crown had brought no evidence to show any overt act had been committed, yvbich brought it within the action of the common law. Ho evidence had been led of a conspiracy to defraud the creditors of Hammill. On the whole case, ho would submit that there was no evidence to go to the jury of either a general or specific act of conspiracy. Mr Joynt, contra, would submit that the evidence led by the Crown was amply sufficient to support the indictment. His Honor said that the point in which he would desh’e Mr Joynt to address himself was whether there was sufficient evidence to connect Wykes with Murphy in an alleged conspiracy. If there was not, then of course Hammill, having been found not guilty, the indictment could not be sustained.

Mr Joynt then proceeded at some length to comment or, the evidence, and contimding that all of it led to the conclusion that Wykcs and Murphy were in collusion together in the matter.

After a very lengthened argument on the points of Wyka’o with the alleged conspiracy an;] Murphy’s intention to defraud HarmuilFs creditors,

Hio Honor said he would allow tho ease to go to the jury, leaving the points of law to be argued afterwards. Mr Joynt then proceeded to reply to the arguments of Mr Harper, [Cases cited, Ca-

dogan v. Kennet, 2 Cowper, 434; Regina v. Howard, 4 If. A F., 460.] He further intimated that the case was made a misdemeanor by the Fraudulent Debtors Act, section 4, sub-section 2.

Mr Harper then proceeded to address the jury for the defence. [Left sitting.]