SUPREME COURT.

Globe, Volume XX, Issue 1609, 17 April 1879, Page 2

SUPREME COURT.

CRIMINAL SITTING. Wednesday, Aphid 16. [Before His Honor Mr Justice Johnston ] The following evidence was taken after we went to press yesterday George Foster gave evidence similar to that given by him at the Magistrate’s Court. Cross-examined by Mr Joynt I saw two distinct fires and a curl of smoke. I take it that smoko means fire. The fire near the window was a small flame, it was about a couple of feet above the floor. I did not see this special fire put out by the buckets of water.|l did not see water thrown on this special fire. The curl of smoko was about 10ft. or 12ft. from the door. There was not much smoko in the shop when the shutter came down. I could not say what the curl of smoko was rising from. The furthest fire from me was to my left hand. It flamed up above the counter about a foot. I did not see tbo burning matter until after it was quenched. The fire between the end of the counter and the window was put out before the brigade came up. When ( hey came there was no flame in the shop at all. I saw a lot of charred black stuff laying between the window and the end of the counter. The stuff looked as if it had been kicked about. It was about five minutes after the shutter was kicked down that the biigade came. I did not see that the little curl of smoko burst into flame while I was about the shop. By his Honor—So far us I could judge from where I saw the little curl of smoke, the two fires could not have communicated.

By Mr Joynt— 1 heard some one say “the engine is coming,” and I let down the shutter.

William Benjamin Hobbs gave similar evidence to that given by him at the R.M. Court.

Cross-examined by Mr Joynt—The fire at the end of the counter was nearer to the door. The other fire did not cover a very large space. The brown paper was all burnt round the edges. There appeared to be loose pieces of paper burning beside some not burning. Thic was between the counter and the window. The loose paper I have referred to was on the top of the brown paper. The paper on fire extended pait way over the end of the counter. There were small pieces of paper between the sheets of brown paper, and they were on fire. The greatest amount of fire was towards the door. There was a chair at Cie end of the counter, and a box, I believe, on the chair. I did not examine the cause of the fire on ’the shelves. It looked like a package, bnt I did not touch it. William Harris also gave evidence similar to that already reported. Cross-examined by Mr Joynt—l pointed out to Mr Lambert the position of the fire behind the counter, and also those of the others. The portion of the debris had been removed prior to Mr Lambert going to look at the place. Between the end of the counter and the window the paper had been on fire. It looked as if the bulk of the paper had been thrown down carelessly and accumulated. The brown paper had been used for wrappers and hs,d been thrown aside. It seemed to me that the space between the window and the end of the counter had been used as a receptacle for rubbish. The water from the hose had never been thrown on the shelves. If the matches had been dislodged from the shelves it seems to me that they would have fallen into a box. If the top of boxes of wax matches were to catch fire and the lids open the ends would all have small flames. Some of the shelves on both sides of the shop had been blistered. I should think that there was more than a few inches of flame from fire No. 2, I noticed that the charring of the counter went nearly all the way to the end. There was a line of discoloration along the under side of the top of the counter. There was a slight discoloration at the end of the counter. There had been no flame along here I think. There were boxes between the seat of the fire and the end. I examined the fire so clearly as to distinctly show me that there had been two fires distinct from each other. The packages on the opposite side of the shop were veiy much discolored. The great body of flame seemed to have gone right over and down the other side. The greatest heat had been drawn towards the packages having matches in tin boxes. It wan in these pigeon holes that the greatest blistering on the shelves was noticeable. The fire on the shelf broke out into a flame some few minutes after I arrived. It would take me about eight minutes to come from my house. The shop was full of smoke and steam, and was very hot. The steam would increase the heat. The glass of the sash and the fanlight over the door were cracked by heat, and the wood work blistered a good deal.

Edward Hughes repeated in (.he main the evidence given by him before the Magistrate. Cross-examined by Mr Joynt—l saw the (ire on the shelf and also under the counter. One package containing brushes was on fire. The flame was going in an inward direction.

John Mitchell Walker gave evidence, repeating the depositions madej by him before the Magistrate. Cross-examined by Mr Joynt—-The boxes of matches now in the debris were shut when I found them. The debris covered the space between the counter and the window. The tobacco boxes produced wore standing at the back of the shop, and bear marks of fire. The past e board box produced stood near the end of the counter.

Lionel Downham Benjamin gave evidenc# similar to that in the Resident Magistrate’s Court.

Cross-examined by Mr Joynt—There was no flame when I arrived at 10.25 p.m. John Thomas Warren was examined, and ga?e similar testimony to that already recorded.

Mr Garrick put the bill book of the prisoner in to show that from March 13th to June 4th the prisoner had bills current to the amount of £1398 8s Bd.

Richard Nichols deposed to being a clerk in Miles, Hassal and Co.’s employ. The prisoner owed the firm in March last some money; about £SO or £60 —beyond the two bills mentioned.

Some other witnesses wore examined, whoso testimony was similar to that given before the Resident Magistrate. The Court adjourned at 7.30 p.m. until 10 a.m.

Thursday, April 17. The Court resumed at 10 a.m. SETTING PIEB TO STOCK. The trial of Isidor Schwartz was continued. The evidence of Sergeant Hughes and Constable Marr having been taken, Mr Garrick announced that his case was closed. Mr Joynt would 'submit that there was no case to go to the jury. His Honor—Upon the first count? Mr Joynt wonld deal with the indictment seriatim. As to the first count, that, he should contend, was bad. His Honor—Do you intend to support the first count, Mr Garrick P Mr Garrick—l think that it is debateable. His Honor—Well, but Mr Garrick, I think the decision in Childs’ case goes to the extent of deciding that a count such as this—which the one in Child’s case was—could not be upheld. Mr Garrick—l did not think,'your Honor, that the decision in Childs’ cane went so far as this. His Honor—Well, wo must examine into the matter. Mr Joynt said he should submit that the first count was bad, and as to the second count he would pass over that for the present. [Case cited in support of contention ; Regina v Childs, L.R. I O.C.R. 307.] He would now go on to deal with the third, fourth, and fifth counts, which were similar in words except the names of the insurance companies. His Honor—And that, was not at all necessary, It is specially provided, by statute that it is not so, and these names being put in are simply traps to lead to failure, as the names must be proved as laid, and if not then the count would be bad. Mr Joynt quite agreed with his Honor. Now he would submit that the counts ho had referred to disclose no offence. It said “ overt acts.” His Honor—But, Mr Joynt, this is onty a continuation of the introduction of the indictment. Mr Joynt—But your Honor it says “ feloniously committed certain overt acts, with intent to defraud the insurance company.” Now your Honor the insurance was not on the house at ail, but on the goods. His Honor—Yes, but Mr Joynt, let us look at it. The first thing is setting fire to things in a building in such a manner as if the building had been set fire to the person would have been guilty of felony. Then it proceeds to recite the overt acts which were felony. Mr Joynt—All I want is your Honor's opinion as to the count. If your Honor holds that it means setting fire to the house with intent to defraud a certain company, I am satisfied. Mr Garrick—l admit your Honor that all counts except the second are bad. I shall rely on the second count. Mr Joynt—Then I shall endeavour to meet the second count. The second oomnt is founded on (he 7th section of the Malicious Injuries to Property Act. [Section quoted.] Mr Garrick in opening had drawn the attention of the jury that it referred to the 3rd section, which was that any person in possession of any shop, and totting fire to it with intent to injure any person shall be guilty of felony. I shall submit that the second count is bad, inasmuch as (hero is not: on the evidence any any one proved to be the owner or insurer of the building, hence no one could be injured, and therefore the count will not come under the statute as in evidence. [Quoted Russell on Crime to show that burning one’s own house under certain circumstances was not arson.] It must be shown

that by setting fire to a house malice must be proved, and some injury <o some other person must be proved. He submitted that there was no evidence to show that there was any malice in his case, or attempt to defraud any one. No owner was shown on the evidence, hence on the cases a man could not injure himself, and would not come under the Statute.

Ilia Honor—lt is exceedingly strange after the decision in Childs’ case that there has been no provision for dealing with setting fire to goods in a building. Mr Joynt—Yes, your Honor. I may point out that Mr Russell goes on to say that the setting fire to a building in a town by the owner where no other person could be injured was but a pure misdemeanour. His Honor—-Your contention is, Mr Joynt, that the evidence does not show that there tvas any other owner of the building than Schwarts, and that therefore there can be no defrauding or injury of any other person Was there any evidence given of the owner in Childs’ case ?

Mr Joynt—Yes, your Honor, I think there was. It must be shown that there is an owner. My learned friend may try and bring the case within the sixth section, but here it says that it must be “malicious.” Now I contend there can bo no contention of this kind, as there is no malice shown. There is nothing here tq say that a man may not set fire to his own house. His Honor—But in a town.

Mr Joynt—Well, your Honor, but it is said that even this only amounts to a grave misdemeanour. But even so there is nothing alleged in the indictment that the prisoner is indicted—for setting fire to his own house. He is indicted for having done certain acts with intent to defraud, viz., setting fire to goods in a building with intent to set fire to the building with intent to defraud. Now there is not one person who is injured or defrauded, so far as the evidence goes. Supposing the building was burnt down then on the evidence, the only person injured would be the prisoner, because there is nothing to show that he was not the freeholder.

Mr Garrick, in reply, said that he would not take up the time of the Court. If his Honor ruled that there was no evidence to go to the jury, he should not take any objection. His Honor—Gentlemen of the jury, I deeply regret that, owing to the grossest possible carelessness in drawing the indictment, to whom attributable I do not pretend to say, the case will have to be withdrawn from your consideration on a point of law. I wish to say here, in open Court, most emphatically, that it is disgraceful that one of the most important prosecutions of the session falls to the ground through the misconduct—for it is no less—of some one connected with the prosecution. I deeply regret that I must tell you on a point of law that there is no case to go to you, and that therefore you must return a verdict of “ Not Guilty. ” This is a great public calamity, gentlemen, because without prejudging the case, 1 may say that, so far as the evidence has gone, there is a strong prtvia facie case. It may possibly have been answered when the evidence for the other side came to be called, but still I say that there was a very strong prima facie case against the prisoner, which has fallen through owing to the carelessness, the gross carelessness, of some one connected with the prosecution. It is high time, gentlemen, that some measures were taken to protect the public. Arson is a most serious crime, and Insurance Companies are one of the greatest blessings we have. It is, therefore, necessary that they should be Srotected. I very much regret that it is my uty to say on a point of law that there is not sufficient evidence to support the indictment.

The jury then, under the direction of his Honor, returned a verdict of “ Not guilty.”

His Honor A circumstance has taken place in connection with this case which I may say is unparalled so far as I know in connection with the administration of justice. I refer to an indirect attempt which has been made to influence the mind of the Judge on the subject of the indictment by sending a letter addressed to my secretary into Court, and marked urgent. I shall consider this matter further, with a view to seeing what steps shall be taken. Mr Garrick said he desired, after what had fallen from his Honor on the subject of the indictment, to state that he had not seen it, nor had it been drawn under his supervision. He was only instructed on Sunday, and the indictment was prepared elsewhere.

The Court then adjourned until 10 a.m. next day, when the special jury case of Parker v Buxton will bo taken.