SUPREME COURT.

Globe, Volume XXII, Issue 1835, 9 January 1880, Page 2

SUPREME COURT.

CEIMINAL SITTINGS. Thursday, January 8. The case of F. H. Valpy, which was proceeding when we went to press yesterday, was concluded as follows : His Honor directed the jury as follows : Gentlemen of the Jury—l have taken time fully to consider this matter, and I feel obliged to refuse to make the amendment in the indictment asked for by the learned counsel, and to direct you that in point of law there is not sufficient evidence to justify the conviction of the prisoner. It does not affect the merits of the case, but the law states that a body like the Eailway Benefit Society are not co-partners, and the amendment asked for is such as I ought not to make. I therefore direct you that on the evidence you cannot convict the prisoner under this indictment. A verdict of “ Not Guilty” was then entered, and the prisoner was discharged. LARCENY. Robert Paynter was charged upon separate counts with stealing goods from the premises of H. B. Sorensen on the Bth of December last and receiving stolen goods. Mr Duncan prosecuted ; Mr Izard appeared for the defence.

The evidence for the prosecution in this case was published in reports of the B.M. Court.

Mr Izard, for the defence, said he intended to prove that the prisoner had purchased the goods, not knowing them to be stolen. Marian Paynter said her mother kept a boarding-house. Her father was given money on the morning of December Bth. He was in the habit of purchasing the groceries, usually about eight o’clock. Amy Paynter, daughter of prisoner, said her father was in the habit of going out to fetch goods about half-past seven o’clock, for twelve months past, and always came back with the goods.

Mrs Stewart said she was the wife of Mr Stewart, pawnbroker, who was at present in Wellington, as a witness at Court. .Knew the prisoner, whose son was apprenticed to her husband. As far as she knew, the accused bore a good character. Thomas Rickson, a tailor, said he had known the prisoner for a number of years, and knew nothing detrimental to his character. Other evidence as to character having been heard, Counsel for the defence addressed the jury ; Mr Duncan declined to do so. His Honor having summed up, The jury, after a brief consultation, found the prisoner “ Guilty of receiving stolen goods.” The sentence of the Court was that accused be imprisoned and kept to hard labor for two years. The Court then adjourned till ten o’clock this morning. Friday, January 9. [Before his Honor Mr Justice Johnston.] The sittings of the Supremo Court were resumed at 10 a.m. BIOT AND ASSAULT. Michael M’Avey, Thomas Hanley, Patrick Ouddihy, Thomas Magner, Patrick Shanahan, Edward Murphy, Thomas Keeley, Michael Bock, Stephan Barrett, John Flaherty, Thos. Wood, and Michael Leary were indicted on a number of counts for having, on the 26th day of December, riotously and unlawfully assembled to the disturbance of the peace of her Majesty’s subjects ; and also that on the day and year as laid in the indictment they did beat, wound, and ill treat Thomas Anderson and others, they then being in the peace of the Queen. Another count charged the prisoners with having assaulted Thomas Anderson, Alexander Houston, Joseph Johnston, Thomas Adams, John Graham, Thomas Edward Stoneycliffe, Archibald Armstrong, individually. They were further charged with having assembled armed with sticks and other weapons, and remained thus assembled for the space of thirty minutes or more, to the terror of the Queen’s subjects going along the common highway. Mr Joynt appeared for the prisoners, who pleaded “ Not Guilty.” Mr Duncan, with him Mr George Harper, appeared for the prosecution. On the jurors being called, Mr Joynt and the Crown exercised the right of challenge, as follows :—For the Crown, 5 ; for the prisoners, 22 ; total, 27. The Registrar then reported that the panel was exhausted. His Honor—Let the doors be locked. Mr Duncan, I think it will now be well to consider the matter as to how we are to proceed. I have been thinking the subject over in view of the panel being exhausted by the large number of challenges likely to be made, and as I think it probable that wo shall not get a jury it becomes necessary to consider whether the proper course would not be to adjourn the Court to another day. You see, Mr Duncan, it would scarcely be fair to the Crown on a case such as this to select a jury from the tales now in Court, considering that the intention of the defendants in exercising their right of challenge is to stultify the Court. The matter ie one deserving the greatest consideration, and it will be for you to fortify yourself with such authorities and advice as you may think proper.

Mr Duncan—Yes, your Honor. Ido not think it would be fair to the Crown to take a jury by way of tales. His Honor—There is this, Mr Duncan, that it is laid down in cases of treason and felony where a number of prisoners are indicted together, are not asked to join in their challenges, and there is reason to believe they will use their right so as to exhaust the panel the Crown has a right to try them separately so as to prevent the inconvenience and delay by the exhaustion of the panel. Mr Joynt—But, your Honor, that refers to cases of treason, and not to misdemeanor. This is a misdemeanor.

His Honor—Well, Mr Joynt, a fortiori, I am not sure that it does not apply to a misdemeanor. But let us go into this matter quietly. Mr Joynt—The prisoners have not been asked to join in the challenges. His Honor—Ton have acted separately, and while it may be that it does not affect misdemeanor, you hare taken steps to defeat the Crown.

Mr Joynt—l beg your Honor’s pardon, I hare not taken steps to defeat the Crown. His Honor—Well, Mr Joynt, I do not question your right to exorcise the challenges, but the effect of the steps you hare taken is to defeat the Crown. You see, Mr Joynt, that according to the law as I hare read it to you, the Crown hare power to try the prisoners separately. As at present adrised, 1 think I shall best consider the interests of justice if I adjourn the Court and consult my brother judges as to what should be done. I shall be glad, Mr Harper and Mr Duncan, of your adrice.

The doors of the Court were then ordered to be kept locked, and His Honor retired to consider the point. After a short retirement His Honor returned into Court.

His Honor—The jury panel is exhausted, Mr Registrar. The Registrar—Tes, your Honor.

His Honor—Has any one any application to make ? As no application has been made to me to pray a tales, I shall consult with my brother Judges as to what is to be done. Let the doors be locked.

His Honor then retired, and after an absence of about half-an-hour again took his seat in Court.

His Honor—Mr Duncan and Mr Joynt I have returned into Court for the putpoas of asking whether you have any authority to show me upon this very nice point. It seems to be laid down in law—though I cannot find the exact authority—that where no tales is prayed by either side the Court has power to order the Sheriff instantly to issue another panel [Archbold]. It is there said that the Court in such coses has power to order the Sheriff to return a panel at the same session, and the justices of the peace then in session may issue a precept to the Sheriff to summon a jury at once. This, I suppose, is keeping up the old power of oyer and terminer and general gaol delivery. Then the question comes whether our Jury Act of 1868 does not repeal any practice in England when inconsistent with it. The practice in matters connected with the criminal jurisdiction of the Supreme Court is to follow the practice of English law, in so far as it is not opposed to the statute law of the colony or statutory rule. Our own Act says that every person indicted for treason felony or misdemeanour i shall have the right to exercise twelve chal- | lenges peremptorily, and the same right is ex- . tended to a number of persons indicted j together, but who may not have joined in the

challenges. The question is whether the prisoners haring severed in their challenges, the panel being exhausted, and no tale* prayed,, the Court has or has not power under the English law to order a fresh jury panel to be summoned forthwith. If counsel on either side hare any authority on the point I have raised I shall be glad to hear it. There need_ be no hurry, as this is a matter which requires to be carefully considered. It is one of great gravity, not alone on account of the special circumstances connected with the case, but on deciding a point of very great nicety in the conduct of our criminal practice. There is a case mentioned in some of the authorities I have seen, the Queen v Geaoh, in which the panel, after being exhausted, was gone through again, but the cases are not analogous, as no point has arisen here, as did in that case, as to the power of the Crown to challenge in this colony. The Crown has in this case challenged but few, and the prisoners a large number. Mr Joynt—l should like to call your Honor’s attention to the fact that the Crown has challenged five, whilst I have not challenged more than four for any one prisoner. Mr Duncan—l dont think, your Honor, that the Queen v Geaoh will apply in this case’

His Honor—Well, then, this is what I shall do as at present advised. I shall communicate by telegraph with my brother Judges, and as a tales has not been prayed the doors of the Court may be unlocked. The jurors and witneaees may retire until 2 p.m. The Court adjourned until 2 p.m.

On the Court resuming, at 2 p.m., His Honor said he had taken considerable pains to search out authorities in this case, and as at present advised he had come to the conclusion that there were two courses open to him: first, that on the request of the prosecution, the Court might order that the prisoners be tried separately by the panel now summoned, each having their challenge, or that the Court should, under the powers of the Act of George IV., and of the Juries Act, orally order a jury to be summoned. What he intended to do, as at present advised, was to adjourn the Court until the next morning at ten o’clock, when he would be able to say what course would be adopted. He would read a a case which was very analagous to the one now under consideration, which had taken place 191 years ago, in the first year of Queen Mary. [Case quoted, Regina v Salisbury, and other references to it, Plowden Com. 100; 16, State Trials; 71, Howes’ State Trials, page 3 and 9.1 Thera was also the case of regicides, which was alluded to in Stevens’, Blackstone’s, and Foster’s Crown Cases. Under the circumstances he should adjourn the Court to 10 a.m. the next day, in order to consider what course should be adopted. The Court was then adjourned until 10 a.m. to-morrow.