SUPREME COURT.

Globe, Volume XX, Issue 1526, 8 January 1879, Page 3

SUPREME COURT.

CRIMINAL SITTINGS.

Tuesday, November 7. (Before His Honor Mr Justice Johnston.) SENTENCE. George Muff, who had been found guilty ot burglary, was placed at the bar for sentence. Mr Harper said he desired to call evidence as to character. , , Mr Wallace, who had employed the prisoner for six months, gave him an excellent character for honesty. , .. Sergeant Felton also gave evidence as to the good character of the prisoner, , ... His Honor said that it was a melancholy thing to send a young man like this to their prisons as at present constituted. Ho was desirous of saving him from ruin if he could. He trusted the day was not far distant when they would have some institutions between the penal prisons and free and honeat labour. Could Mr Harper suggest any way out of the difficulty. Mr Harper could not. # ~ , His Honor, addressing the prisoner, said that it was impossible in the present state of the prisons to vindicate the law without imprisoning the prisoner in the gaol, but ho begged and entreated the prisoner whilst in gaol to keep himself to himself as much as possible, and away from the society of evil-doers, during the short time he would be in prison. His Honor then sentenced the prisoner to six months’ imprisonment with hard labor.

EMBEZZLEMENT. Francis Hopkins "V alpy was indicted for having, on the 10th October, whilst a member of a certain co-partnersbip, fraudulently embezzled certain sums of money received by him for and on account of the said co-partnership. There were four counts in the indictment. Before the prisoner was called upon to plead, Mr Izard, who appeared for the defence, said that he would apply to his Honor to quash the indictment, onthe ground that there was no allegation that the prisoner was in the service or employ of the co-partnership. . His Honor said that he was under the impression that the application should be made in arrest of judgment. Mr Izard said that his point that the indictment should allege that the prisoner was a clerk or servant. His Honor said that this seemed to him to be a point which was worth consultation. What had Mr Duncan to say ? Mr Duncan said that it was not necessary, in his opinion, to allege that the relation of clerk or servant existed under the new Act. His Honor said that without the relation of clerk or servant to the rest of the co-partnery there could he no embezzlement. Without this relation there was no such crime known to the law. There was no such thing as common law embezzlement. Mr Duncan held that there was no necessity to include this in the indictment. His Honor, as at present advised, was of opinion that the objection taken by Mr Izard had great weight. It was a most important case, and one which he would not take the responsibility of deciding without telegraphing to his brother Judges on the matter. His judgment i* the case of Regina v Brown at the Court of Appeal, was on the same ground, viz., that the count in the indictment did not contain an allegation that the prisoner was a clerk or servant of the co-partnership. The effect of the new Act was to make that larceny in a co-partner which would have been larceny had the prisoner not been a co-partner, and the same applied to embezzlement by a co-partner. His Honor read the judgments in the case of Eegina v Brown given in the Court of Appeal, and said that there could be no doubt so far as at present advised that the indictment was bad. Did Mr Izard wish his motion to quash the indictment to apply to all the counts ? Mr Izard replied in the affirmative. Hia Honor said that the Court was waiting for some motion by counsel. He would remind counsel that the Court did not sit there to adyise cpxmsel. Did Mr Duncan think that he would be able to support the indictment for larceny as it concluded in thp proper form. Dupcan'popld pot ftq so. He was unable to prove larceny. ... j His Honor said a very nice point arose, and that was this, whether the indictment could he quashed in face of the probability of a conviction for larceny being obtained. They were not bound to assume that the prosecution could not prove larceny, although, to [prove larceny on an indictment for embezzlement, they would have to make out a case of embezzlement. He had some doubt about quashing these indictments, and if the prosecution went on the prisoner would have to remain until a motion in arrest of judgment or a writ in error was moved for, Mr Duncan said there was no doubt that he could not sustain the indictment for larceny. The indictment was defective on the face of it. His Honor said that the interests of the public could not be served by going on with a case in which there was no possibility of a judgment. After some further discussion. Hi* Honor asked Mr Dnncan if ho intended to prefer another charge against the prisoner before thfe Resident Magistrate’s Court. • ''Mr Duncan saidhe intended to do so. His Hoilbr then directed the Deputy-Registrar to read over'the second indictment, and ordered both to be quasheef omths ground raised by Mr *Thc prisoner was then discharged. , The Cpnrt adjourned until 10 a.m. tins day, when the case of Regina v. Cowan, for arson, will he taken, that being the last cusp on the calendar. I

Wednesday, January 8, The sittings of the Court were resumed at 10 a.m. sentences. J. H. c. Keig, who had been convicted of indecent assault, and John Casey, who had been found guilty of larceny at the Port Philip Boarding-house, were brought up for sentence. Tho police reported that they had_ made enquiries as to the character of each prisoner, and nothing was known against them. Detective Benjamin stated that a man named Codin had offered to give Casey employment, provided ho wns bound to him for six or twelve months. , Codin, when called upon, however, stated that he did not know anything of the prisoner, and hiß Honor dec i cl n t lo :il O v this to bo done* His Honor then sentenced Casey to six months imprPonraent with hard labor as a first offender, and Keig to three months hard labor.

Arson. Alexander Cowan was indicted for having on the 20th Uitjber set fire to a dwelling hoimp in bis occ;..nation pi Salisbury aim Colombo streets 'jfath if.iiint to’ defraud the TVai a itlantic and gouth ip-itish Insurance Companies, The prisoner, who was defended by Mr John B Gresaon, pleaded “ i\ot Guilty.” The prisoner challenged to the extent of his right, viz., twelve jurors.

Mr Fred. Hobbs was chosen foreman of tbo petty jury. The Crown Prosecutor hsving briefly stated the case, called the following evidence Margaret Hogan—l am a general servant, and on 20thiOctober I was in the service of prisoner in his private boarding house in Salisbury street. On that day I was not upstairs Ibefore the fire. About half-past twelve I saw smoke coming from one of the bedrooms. I went upstairs, opened the door, and saw fire in the corner nearest the window, and furthest from the door. I saw the fire, and turned back. The roof was blazing in the corner and the paper of the wall was on fire. I went downstairs and gave the alarm. I first told Mrs Wilson, who was in the kitchen, and afterwards told Mr Withers, a gentleman who was living in another part of the house. I sent a girl to call Mr Cowan, who was in the adjoining paddock. There is a fence between the paddocks and a gate. Mr Cowan had his coat off as if ho had been working. About five minutes elapsed from the time of the alarm to Mr Cowan’s coming up. Mr Cowan went away with a lady and her children in a cab to the railway station about 11.30, and the fire was about 12 30. Wo went up to the bedroom and threw 7 water on the fire. There were kerosene lamps in the ball. I saw them about half-past ten o’clock tbo previous evening. I took one of these down and put it on a shelf in the passage. I missed the lamp that I had left on the shelf after the fire. I never saw the lamp again after the fire.

By his Honor—When I put the lamp out I left the chimney on it. There were only two such chimnies in the house, and they were on the the lamps in the hall. I found the chimney of the missing lamp on the shelf. I had left in on the lamp, but I found it detached and whole. There was a very strong wind blowing the day of the fire.

Cross-examined by Mr Gresson—There was only four or five gentlemen lodging in the house. The dining-room was situate underneath, and not far from the bedroom where the fire occurred, 1 think the walls were canvassed and papered. You could hear what was going on from one room to another. Luncheon was served at half-past twelve usually. The boarders camo homo to luncheon at that time. I was employed from twelve o’clock to the time the fire occurred laying the luncheon. I was in and out along the passage from the dining-room to the kitchen all the time. The staircase to the bedroom where the fire occurred opens ont on to the passage, and any one going up to the bedroom must go up this staircase, I heard no one up stairs. I think no one could have gone up stairs without my seeing them. A person passing between the house and the paddock could bo scon from the kitchen door, and also from the cottage where Mr Withers was. Mrs Winter’s servant was in the passage after me on the night when I put out the lamps in the hall. When the window of the bedroom was open the wind might blow the door of the bedroom to. I think tbo wind was blowing that day in such a direction as to come in at the window, which faces to the north. Ann Wilson —I remember on the 25th Oct. last being at Mr Cowan’s boarding bouse, A fire took place there. The alarm was given by Margaret Hogan about half-past twelve. We both went upstairs I saw fire in the corner of the bedroom, and I ran down stairs and got a bucket of water to throw over it. After I had thrown the water on the fire, I moved the bed down the room, and saw a lamp standing in the comer. It was a glass kerosene lamp like the one .produced. It bad no chimney on it, and seemed to be close to the corner where the fire was. The wall was canvassed and papered. I noticed marks of firo from the place where the lamp was upwards to the roof. The roof is much sloped, the upright part not being more than half a yard. I had last seen Mr Cowan before the fire about eleven when he went for a cab to take away Mrs Winter and her family. I next saw him coming running from the paddock towards the fire. I had been twice upstairs before I saw Mr Cowan, and was going for a third when Mr Withers met me and took the bueket'frora me. The fire was in north-west corner - of the bedroom. There were kerosene lamps used in the house, two in the hall like the one produced. There were five lamps in all in the house, but no others of the kind such as those in the hall. Cross-examined by Mr Grcsson —Mrs Cowan was at Ashburton for the benefit of her health. I threw the water into the corner where the fire was. Both beds in the room were unmade. The keroseme lamp was standing on the left-hand side by the head of the bed. The bedstead was not close to the wall, and the lamp was between the bed and the wall. I noticed smoke arising from the corner. I went to Mr Eitcbie’s for more assistance, and gave the alarm. This would bo about ten minutes after Margaret Hogan told me of the fire. After the fire was over I saw a candlestick and matches on the dressing table. The candle could not have been lighted as it stood, as it w.is upside down In the candlestick, Edward Withers gave evidence as to the occurrence of the fire. Bessie Bree—ln October last I was servant to Mrs Winter, and was staying at Mr Cowan’s house. Mr Cowan went with us in a cab to the railway station about half past eleven o’clock. We wont by the ten minutes to twelve train, and arrived just in time to catch the train. I went with a detective to see the room occupied by mo the night before the fire. I had a candle in the room that night. I left the candle and matches on the chest of drawers. I was last in the room on the morning we went away, about eleven o’clock. There was no kerosene lamp in the room then. Had there been one in the left hand corner, I must have seen it. I went to bed the night before between 10 and 11 o’clock. I did not take up the kerosene lamp from the passage that night. When I left the bedroom in the morning, the window was shut. It was a casement window. I did not observe any bottle or part of a bottle in the room when I was last in it. Cross-examined by Mr Gresson —I got the candle whole on Tuesday or Wednesday evening. On the Thursday evening, I think I was sitting upstairs. The children broke the candle in two the night but one before we left. The wick of the piece in the candlestick soon burnt out, and I bad a match in it to keep it alight. I bad no light to go to bed by at all. 1 was last down stairs just before ten. Both the lamps in the hall were put out. I never read in bed. I did not sleep in the bed on the side where tbo fire was on the night before we went away. By bis Honor—During the night or in the morning I did not smell smoke or kerosene. Ee-examined by Mr Gresson—The children were fond of playing with matches, and would take them if they could gpt them. Mrs Wilson was re-calffid by Mr Gresson, and stated tjiat the window was open when she went into the room. She never touched the lamp at all.

Andrew Ritchie gave evidence as to having been told of the fire at Cowan’s honse, by Mrs Wilson and going over there. He also deposed as to tho appearance of the fire, and there being a strong oily smell. Witness saw a number of embers scattered over the white quilt of the bed, which were like paper or flax. Joseph Sherlock deposed (to findingja bottle in tho room where the fire originated. It was a stone bottle, broken in two. There was a little water and ke. osene mixed together like. Witness also saw some tow near the window, and drew the attention of one of the sergeants to it. The tow produced was what witness called attention to. After tho fire was over, witness smelt the kerosene in the stone bottle produced. It would take a great deal of strength to close the door of tho bedroom where the fire took place. Cross-examined hy Mr Gressou—There was a strong nor’-wester blowing the day of the lire, Edward Hughes—l atn sergeant of police stationed at Christchurch, and on 25th October, In consequence of all alarm 1 of lire, wCnt to Cowan’S house. * I Saw the ndrtli-wcst corner of the roof on fire. 1 saw a boy named William Ayhsley pick up some tow or flax op the lawn close to the window where the fire took place. I afterwards picked up Sfimc more tow, which was saturated with kerosene qnd charred as it i? now. I found it on the lawn, about Sixteen fept from tho window whepe tho lire was. It could have been thrown out quite easily, Mr Shcy-look drew my attention to some tow on tho window sill inside. It is similar to the charred tow found by me outside. About a foot from where I found the tow on the lawn I found the kerosene lamp-bnrncr produced. It had some small particles of tow adhering to it, and in three places spots of melted lead, fresh and bright as if recently melted. I made further search on the lawn, and found qnothcr part of the kerosene lamp and part of the bowl of a lamp. This was about 1 p.m, on the day of tho lire, I noticed tho glass was full of miniature cracks, as though water had been thrown upon it when strongly heated, Ihe glass and metal which I found corresponded with the lamps produced. When looking out of the window of the room where the fire occurred I noticed in tho gutter of the verandah underneath some charred tow or flax, which 1 ’ It corresponds exactly with L found in the Toom aim outside. 1 saw the pn°o,icr on top of the building which WS'S pq fire. X saw 'the prisoner afterward* hi the roour with Detective Walter. The'latter said to prisoner, “Tour hand's smell of kerosene.” Ho replied, “I may have got it off the stuff or the handle of the bucket.”

Cross-examine! by MrGrrsson-Mr Wilson, Mr Sherlock, Inspector Hickson and several others ware in the room when Detective Walker told prisoner that his hand smelt of kerosene.

Mrs Wilson’s hands also smelt of kerosene, and indeed everyone who handled the tow which was saturated with kerosene. I think the glass was the remains of a lamp which had burst, because the pieces wore so small. The tow 7 was lying scattered and not in a bundle. I don’t think it would be possible to throw tow sixteen feet in the face of a stormy nor’-wester. Ee-cxamined by Mr Duncan —If the brass part of the lamp, the glass and the tow were all put together in a bundle, they might bo thrown where I found them. Mr Gressou—Your Honor will then see that if the lamp burst in the room it would account for the tow smelling of oil. His Honor —You w 7 ill be able, Mr Gressou, to put this view 7 to the jury as being consistent with the facts of the case.

Constable O’Connor gave evidence as to the finding of a portion of a gingerbeer bottle in the room where the fire took place. It was covered with charred paper, and had kerosene and w 7 ater in it. Witness also found pieces of a gingerbeer bottle outside the window. Also some tow which was saturated with water and kerosene and partly burnt. Witness saw Cowan between eleven and twelve on the Colombo bridge, and saw him again about 12.10 or 12.15 near the Post office, going in the direction of his own house. He said to witness after the fire, “ You saw mo down the town at twelve o’clock and after.” "Witness had not spoken to prisoner before this.

Cross-examined by Mr Grcsson —Those standing round bad been remarking that the fire looked suspicions. Prisoner did not appear to be in any hurry when witness saw him near the Post office. It would be about a quarter of an hour after this that witness heard the fire bell.

Charles Reed deposed to the prisoner being his tenant. The rent was .£l5O per year, and prisoner was in arrears at the time of the lire to the amount of £lO7. The solicitor of witness, Mr G. Harper, had applied shortly before the fire to prisoner for the arrears of rent. Charles Francis Eeed gave evidence ns to an interview had with prisoner on the 18th October, and gave him notice to quit the premises at Christmas. Ho said that legally he could stop till 25th March. The notice was in writing, and Cowan gave it back to witness. He did not give up possession. Mr George Harper deposed to his firm having applied on 23rd October, as solicitors to Mr Charles Eeed, for arrears of rent due to him by prisoner. Witness saw prisoner on 30th October with reference to the claim of £lO7 10s, rent due to £24th September preceding. He referred to the letter dated 23rd October,

J. C. Martin gave evidence as to sending the letter spoken of by George Harper, in which application was made for the rent due within one week, or legal proceedings were threatened. There was an entry in the stamp book of a twopenny stamp being used for a letter to Cowan on 23rd October.

James George Hawkes deposed to having valued the furniture in Malvern House after the fire, on bohalf of the Insurance Association. The result was £347 la 8d ; this, as a saleable value, was an indulgent value. It included everything. Cross-examined by Mr Gresson —To replace the furniture in the house with new would cost about £l5O more than the value bo bad stated.

Alfred Taylor deposed to tbo prisoner insuring for £250 on household furniture, and £SO on piano on the 23rd October in the Transatlantic Insurance Company, and paid the premium £2 ss. He had previously been insured in the same office for £4OO.

J. D. Macpberson deposed to prisoner affecting an insurance with the South British Insurance Company for £3OO on his furniture. John Mitchell Walker gave evidence corroborative of the other witnesses.

Detective Benjamin deposed to arresting prisoner at Ashburton on November 9th. The prisoner had left word with the police where ho was going to in case of his being wanted. This closed the case for the Crown.

Council on both sides hauing addressed the jnry at some length, his Honor summed up, and the jury retired to consider their verdict, and returned in seven minutes with a verdict of “Not Guilty.”