Supreme Court.

Hawke's Bay Times, Volume 15, Issue 786, 12 May 1870, Page 2

Supreme Court.

TUESDAY, MAY 10, 1870. The Supreme Court, in its civil and cri» tninal jurisdiction, was opened at 10 a.m, by his Honor Mr Justice Johnston. His Honor, in his charge to the jury, referred to the calendar as showing that the criminal classes in this part of the country had not yet attained to any great development; and proceeded to describe ,the various cases in the order in which the offences had occurred. The first in order of time wa9 a charge of arson, in which a European, after % dispute with some natives, was believed to have set an inhabited ivhqre on fire. The offence appeared to have originated in the state of mind and body produced by indulgence in intoxicating liquors. The crime of setting fire to an inhabited house was of course the same, no matter what the description of dwelling might be, and if the jury considered that the dwelling had been maliciously set on fire by the prisoner they must find a true bill. The next case—a charge of indecent assault—was one which had better, perhaps, have been dealt with elsewhere. If; the evidence was to be believed, an assault in point of law had been committed; but it was for the jury to decide whether that evidence was sufficient to constitute 4 prima facie case against the accused. A case of horse stealing would come before them, originally a charge against two persons, one of whom, in order to prevent a failu-e of justice, had since been admitted as evidence against the other. The law in its strict interpretation did not necessarily require corroborative evidence in a case of this kind, but it was the invariable practice in Courts of Justice—a practice so inveterate as to have acquired the force of law—never to convict a prisoner on the uncorroborated evidence of an accomplice. It would be, therefore, for them, in considering this case, to see what corroborative evidence had been adduced. Next came two charges against a native for breaking into and stealing from a dwelling house at Meanee, and the evidence (of which his Honor gave a snmmary) showed that there was rather a strong case against the accused. There was also a case of larceny against a constable—who, he observed, by an abuse of the English language, was described as a " constabulary." The prosecu* tor appeared to have been drinking with the prisoner and others, and to have thrown off his coat and waistcoat to fight. The garments were taken up by the prisoner, and a sum of money, amounting to about £23, was afterwards missed from the pockets. The prisoner, who was then lying in a tent overcome by drink, and who was supposed to be rather short of money, was searched, when a roll of notes was found upon him, and two bottles of brandy under his head by way of pillow. This money was taken from him, and the strongest part of the case against him was that when he recovered from the effects of the liquor, though he carefully searched in and about the tent, he made no complaint of having lost the money. There was one other case, also connected with the doings of the Armed Constabulary, which demanded some attention. An impudent fraud had been committed, but it seemed doubtful whether it could be brought under the law, A constable obtains goods, giving in payment an order on the paymaster. On this being presented the man refuses to sign a discharge for the money, whereby the paymaster is precluded from making the payment. This was equivalent to giving a cheque and stopping payment at the bank before it is presented; the document is valueless, and the debt remains. It could not be a good system under which such frauds could be perpetrated; and means should be adopted to reduce the possibility of such offences being committed to a minimum. It might be made impossible for a man, after giving these orders, to retract them. The case was sq very like a fraud that it was to be regretted that the prosecution had not yet seen its way to bring it in as a positive crime. The Grand Jury then retired, and shortly afterwards re-entered, when the foreman reported that they had found no bill in the case of H. D. Tupper, charged with indecent assault; a true bill in the case of Thomas Floyd, charged with larceny; and a true bill against Patrick M'Lauchlan, for larceny. In the case of arson, they had no means of arriving at a decision, as there was no appearance of the native witnesses. His Honorasked if these witnesses had been bound over to appear and give evidence j to which Mr Wilson replied thai

it was not usual to take recognisances of natives, as it was generally found useless. The witnesses had come in from Taupo, and were in town on the preceding day. They were now not to be be found, and as it was conjectured that they had paid a visit to their friends at Pakowhai, a messenger had been despatched to that place in quest of ihem. He applied for a postponement of the case, which was granted. Tnomas Floyd was then charged with having on the 19th November, 1869 stolen a horse, the property of James Lopdell. The prisoner, who was undefended, pleaded not guilty. John Hampden deposed that he was a soldier in the 18th Regiment, that on the evening of the 19th November he saw pri« eoner sitting on his doorstep near the Immigration Barracks, holding a bay horse by the bridle. Prisoner entered into conversation with him, advising him to desert j telling him there was plenty of work up .country, where he could earn 5s or 6s aday for doing next to nothing: and offered to take him into the country. Witness agreed to desert; bnt said two could not ride on the horse, to which pri soner replied that ho would soon settle that by getting another. Witness afterwards disguised himself by taking off his smock and drawing on a gray shirt, and they went in company to Lopdell's stable, prisoner on hoi'seback, himself on foot. They found the door padlocked ; but the prisoner took a stone, with which he knocked off the staple and opened the door, witness holding his horse. Prisoner brought • cut a gray mare, a saddle, and two bridles, one of which he left on the ground, saying he would give them the trouble of picking it up. He put the saddle and bridle on the mare, which he mounted, giving the other mare to witness, remarking that it wa3 quiet. They then went to the pump and watered the horses ; after which they went to a house in Schley's gully, where they saw a man of the Armed Constabulary force named Hutton. They then left the town and rode through Meanee to Taradale, after which they crossed the river opposite a Maori pa. Prisoner then dis mounted, and drove the gray mare across the river wilh stones, saying she would find her way homo. They slept all night At the pa, and left at daylight. Witness was arrested soon after, as he was tying on the river bank, not far from M'Xenzie's mill. The witness was examined by the pri • soner, but nothing further was elicited. [The Grand Jury here entered 1 and reported that they had found fonnd a true bill against Teira te Aim for larceny. They Were then discharged till 3 p.m.] James Lopdell deposed that he left his stable locked on the evening of the 19th November, about 9 o'clock ; on the following morning early he found it broken open and a gray mare, a saddle, and two bridles missing. One of the bridles, a sol- '. dier's coat, aud two large stones were lying outside the doo*. He gave information of the robbery to the authorities, and with Sergeant Carkeek, A.C., started in : search of the thieves. They found Hampden lying on the river bank near Redc-iffe. Witness remained in charge of him, while Sergeant Carkeek went on, and shortly after returned with Flojd. They brought both men into town as prisoners. He afterwards found the stolen mare, with the saddle and bridle, in the possession of the Maoris. Sergeant Carkeek corroborated the evidence of the previous witness, merely adding that be found Floyd about a mile and a half from Hampden ; and that on being arrested prisoner said he knew nothing of the robbery. Wyndham Hutton was called, but made no appearance. Prisoner in defence said that Hampden took the horse from the stable while he waited on the road. If he had had any idea that the horse was stolen he would not have accompanied him. His Honor, in summing up, remarked that while there was ample corroboration of the fact of the theft, the only direct evi dence against the prisoner was that of his accomplice. The jury, after a short deliberation, ""* found the prisoner not guilty. Teira te Ahu was charged with having, on she *BLI December, entered a building, belonging to Or. Ryrner, and stealing therefrom one saddle. The prisoner pleaded guilty, adding that this was his first oifenoe, and that it had occurred through other Maoris leading hiin, into drinking h&bits.

His Honor feared that; it was not the prisoner's first offence ; but if it was true that drink had led him into this crime, it would be to his advantage to be placed for a time in a position where he would hare no opportunity of indulging his taste. If his professions were sincere, on his release he would avoid the snare into which he had now fallen. The punishment would not be a severe one, and the case would be treated as a first offence. The sentence of the Court was that he should be imprisoned six calendar months with hard labor. Patrick M'Lauchlan was then charged with having, on the 22nd December, 1869, stolen £23 from the person of B. Rabbit The pri oner, who was defended by Mr Stedman, pleaded not guilty. E. Rabbit deposed that he belonged to the Armed Constabulary; that on the 22nd December last he was at Poverty Bay in company with the prisoner and others j thaj they had on the previous day been paid two months' wages, and prosecutor was then drunk j that he and prisoner had a quarrel in the cook-house, which caused prosecutor to take off his coat and waistcoat and throw them on the table j the waistcoat contained £23 in notes ; prisoner bad been drinking, but was not drunk; he took up the clothes and went out with them j prosecutor was too drunk to follow him, but called out, " Bo careful of those clothes of mine; there is a lot of money in the pockets;" prisoner said, " Never heed." This was between 7 and 8 o'clock in the morning. He had been up since 2 a.m. drinking. He never saw his money again. By Mr Stedman: I had received £7 or £8 from the Q-overnment; the rest was payment for tailoring for the men. It was all in £1 notes. I do not know how the quarrel arose. I counted £24 about 5 or 6 o'clock, and had changed £1 after. 1 suppose I spent 7 or 8 bob of the change. The rest of the change, as- well as the 23 notes, was in an inside left hand pocket. We were receiving 53 per day. Francis Humphries deposed that he went into the cook-house about 8 a.m., and saw Rabbit and M'Lauchlan quarrelling. They l were both stripped. Prisoner took a coat and waistcoat off the table, and Rabbit said they were his clothes. Prisoner said " Never heed." Rabbit said, " My money is in those clothes." Prisoner said " Never heed" again, and went towards the door with them. Witness did not see whether he took the clothes out. Afterwards saw M'Lauchlan in the guard room, where they were all imprisoned together for drunkenness. His Honor remarked that it was a stupid system to pay men composing such a body as the Armed Constabulary in lump sums—as much as two months' wages at a time. Sergt. Heeny was called, but did not ap pear, and Corporal Hallett was examined in his place. He deposed that on the 23rd December- he searched the prisoner, then lying drunk in a stable, and found in his waistcoat pocket a purse containing a £1 note, and in his trouser pocket a roll of 7 notes. He took possession of the money, also of two bottles of brandy under the prisoner's head. On the following day prisoner was sober, and wa3 looking about round the stable, but did not report the loss of the money. Witness produced a book in couH to prove that the prisoner had only received £1 pay on the previous day; but as the book had been kept by Sergeant Heeny, this evidence was not allowed. The counsel for the prosecution and defence having addressed the jury, his Honor summed up, condemning strongly the slipshod manner in which this affair had been managed —one of the material witnesses summoned remaining at what was called the and sending another person in his place who knew very little about the matter. The jury after a short deliberation, found the prisoner not guilty. His Honor, in discharging the prisoner, remarked that it was a very suspicious case, and that he might consider that he had had a very narrow escape. His Honor also took occaion to refer to the status of the demilitarized constabulary, remarking that he had read of a case in which they refused to render asssistance in arresting a prisoner, on the plea that they had nothing to do with civil business. Such pretensions were utterly preposterous. The Armed Constabulary were to all intents and purposes a civil force. Mr Wilson reported to his Honor that the Maori witnesses and a native policeman who were summoned to give evidence in the m'son case had not yet been found ;

and asked for a postponement of the case to next day. His Honor was very reluctant to keep both juries waiting another day ; but this case being a native one, he was specially anxious to prevent a failure of justice j and he accordingly postponed the case to next day. The Court then adjourned. WEDNESDAY, MAY 11. His Honor took his seat at 10 a.m. Mr Wilson informed his Honor that no trace of the native witnesses had yet been found. His Honor considered this one of the most serious things that had yet eome under his notice. The absence of these men was no accident j he had no doubt they had been tampered with. It seemed that Mr Locke had trusted too much to his influence with the witnesses, and had not taken the necessary precautions to ensure their attendance. Some energetic means must be taken to find these witnesses and compel their attendance. He would adjourn the case to 10 a.m. on Thursday, [this day] and if in the meantime proper steps were not taken to secure the presence of the natives, he should feel it his duty to represent the whole circumstances in the strongest possible way to the Colony at large. T, Floyd was then indicted, charged with having on the 19th November stolen one saddle, the property of J. Lopdell. Prisoner pleaded guilty. The evidence in this case was precisely the same as that given in support of the charge of horse-stealing on the previous day. Sergt. Carkeek made the additional statement that the prisoner ou being arrested, after saying he knew.nothing of the matter, accused Hampden of stealing the horse, and said " I suppose I shall get ten years for it." A long and rambling statement made by the prisoner in the Resident Magistrate's Court was also put in as evidence. The story agreed in almost all particulars with Hampden's, with the exception that the prisoner represented himself as having used all his influence to dissuade Hampden from deserting, and accus&d him of being the person who broke open the stable door and stole the horse, as well as the one who turned it adrift and sent it across the river. His Honor summed up, showing that with the exception of pntting the case in the best possible light for himself, the prisoner's story agreed substantially with the evidence of his accomplice. The jury after some consultation expressed a wish to retire. After a lengthened absence they returned a verdict of Not Guilty. The prisoner was discharged, and the Court adjourned to 10 a.m. this day.