SUPREME COURT.

Hawke's Bay Times, Volume 19, Issue 1403, 16 August 1872, Page 2

SUPREME COURT.

(Before His Honor Mr. Justice Johnston.) THURSDAY,, 15th AUGUST. Perjury, ... SUTTON V, PAORA TOROTORO. Oskar Beyer, sworn, deposed : I live on the Spit. lam a licensed gunsmith. The practice in selling ammunition to the natives is that hm order must first be obtained from Mr Ormond,, which is taken to Mr Tabu lean, who then grants a licence or permit, whiph costs a shilling, I know the defendant. He has bought ponder of me. He bought some of me on the 30th May, 1870— 11b powder, Alb shot, and 250 caps. I produce the permit. That is the only purchase,he made in that year. There, was a man with Paoraxyhe.n he came. Paora was intoxicated. Paora paid for it in money. Mr Sutton never gave me an order to give any ammunition to Paora. It was not upon any order from Sutton that I sold the powder. By Mr Lascelles: I cannot say whether Paora was sober enough to be cognisant of what was going on. IJe paid for the amount he received. I gave him change, which the other counted. Ido not remember whether Paora or the other native was the principal He was very stupid and careless about the whole transaction, and did not know exactly what he was doing The other man had been drinking, but was not so much affected as Paora. This closed the case for the prose cution. Mr Lascelles opened the case for the defence. He argued that the endorsed receipt required by the Native Lands Art of 1865 was not placed upon the deed till June, 1872, and that con&e q r.ently at the time of the application in the District Court it was null and ■void, both in law and equity ; therefore evidence relating to it could not be material. J, M Tabuteau deposed: I know the deed produced I saw it on the 15th June, 1872. I endorsed the certificate upon it, on that day. Jam the officer appointed for that purpose. The duty wax assessed by the Registrar of Deeds. There was no endorsement of receipt on the deed preuous to that date. By Mr Wilson; I receive all these duties in this Province. There have been other duties paid to me on the same block

H. B. S.-aly deposed : In 1870 1 was Registrar of Deeds in this Province. I cannot say what duties have he n paid on the Mangateretere West block with out reference to the records now in Mr Tm ton's chaige. Waka Takahari (a grey headed old chief) deposed: I know Paora Torotoro; I also know Mr Sutton. I was in Paora's house on'; evening about the time a native whare was being built. I did not i ear what passed. I can write my name. The signature; shown to me is in my writing. I remember putting my name there; it was done in Paora's house. Sutton was present, and asked me to write my name. I did not see Worgan there at the lime. I did not see Paora wiite his name there It was not explained to me why I should write my name. I was told to sijm it. After I had signed it I asked what it was for; I was told it related to Mangateretere West block. I said "Strikeout my name, I have no claim." When I signed it I thought it related to land at Petane to. whtch I had claim. I was not told that my signature was to show that I had seen Paora ,sign his name. I did not see Paora's signature to the deed ; it may have been there. I did not see him write al all. He was sitting down and appeared very drunk. He took no part in the conversation. He was reclining with his, eyes half-closed. (Witness here imitated the attitude.) He had some spiiiix before, and Mr Sutton brought a bottle of pale brandy, which was drunk by Paora and others. I had one glas*, after I had signed my name. I had some at the kainga before I signed my name. Paora had commenced drinking the night before, and had continued till Sutton came. I did not hear any explanation of the deed at all. I do not know George Worgan. (Mr Worgan being pointed out was recognised by the witness.) I saw him there after I had signed my name, lie did not say

anything about the deed. T did not see him when I wrote ray name. Mr Sutton gave nje the pen. The only spirits drank at the time the deed was signed were those brought by Mr Sutton. ~v ■. 1 ' ~: . ' ;>0

By Mr Lee ; I saw Mr Sutton arrive at the pa. Mr Worgan was with hiin. I live in the same house as Paora. When Mr Salton came Paora and I were not building the house; lie was too drunk to work. 1 live at Petanc. I lived for about a month at Paora's place. I had no conversation with him about the Mangateretere on the day Mr Sutton came, nor at any other time. I have-some land at Pahau. Mr Seal y was recalled, and gave evidence relating to the fees paid upon the Heietaunga block, but this evidence was not material to the case. The. Court at 20 minutes past 1, adjourned for half-an hour. The Court resumed at 2 p.m. Pahi Mania deposed : £ know Paora Toroto. I was at his house when Mr Woigan and Mr Sutton came. I was not present all the time they were there. Mr Worgan went to Waka's house. I went in to Paora's house for an axe. Wafca Takahari, Paora Torotoro, and Mr Sutton were there. Paora wa«» lying down when I went in. I did not hear him speak. I saw a bottle of pale brandy between Paora, Waka, and Mr Sutton.' The bortW' was about half empty. I did not see papers. I was not long there. I had seen Paora once previously that morning; he was then drunk.

By Mr Lee ; We were building a wliare for Paora at the time. Paora did nob 'vovk at it that clay ; I did. I live in Waka's house. I had no drink a I Waka's house; when I got there his bottle was empty. I was not drinking oh the previous evening Tewi Wiremu deposed : I know Paora Toroforo. I lived at his place when his houHt. was being built. I saw Mr Sutton and Mr Worgau come to Paora's place. I saw Worgan go to "Waka's limine ; Sutton went to Paora's. I did no 1 , see what went on in-ide the house. I saw a bottle of pale brand) given to Paora Tomtom by Mr Sutton. Mr Sutton took it from the left hand side of his coat. This occurred outside the house. Paora was very drunk at the time. Another day I was present when Paoia brought some ammunition. Paora said to me, "Fetch that ammunition, and send it upstairs." It was in a box in the trap. I took it upstairs and opened it. There were in it eight small flasks of powder, 2 bags No. 3 shot, and 4 boxes caps. I cannot say certainly that this was after Mr Sutton had been there. I was at Paora's place all the time the whare was being built I only saw gut ton and Worgan there once. I saw Paora during the early part of that das anil the night before ; he was veiy drunk ; he ha<l been drinking heavily the uight before. By Mr Lee : Paora was. on the side of his house next to tho road when Mr Sutton gave him the drink. I cannot .say how far he was from the house—perhaps half the length of this room. I was standing outside when I saw Sutton and Worgan coming. I was engaged in decorating the house. When Sutton gave Paora the liquor I was only twelve or fifteen feet away. I did not see Worgau at the time. Hohepa deposed : I know Paora Torotoro. I lived at his kainga about two years ago. I remember the building of his new About that time I came to Mr Sutton's with Paora Paora asked Mr Sutton foy some ammunition Mi Sutton wrote a letter ; he said it was to get ammunition. He told me to take it to the Custom-house. I gave it to a man there. He gave me a paper to go to Beyer's. I went there and met Paora as I was coming away. We went together to Beyer's. We got 8 flasks powder, 2 bags shot, and 4 boxers caps. We did not pay. We put it in a trap, and took it to Paora's place. Paora took it out. There was no one with him. It was left in the house. I went away before it was taken out of the trap. By Mr Lee : I saw Sutton write the letter.

Hapirana deposed : I live at Kohit* patiki. I lived near Paora when his new house was being built. I saw M»' Wuvgau a»4 Mi' Sutton go there.

Paora was very tin ink thai day. He. was lying asleep in his house. Hi* wife awoke him and told him Suttonhad come, jfc gave Paora a bottle; I went after them to get soui* myself. JXm Wwj outside the house. It was not to me. By Mr Lee : I was near Waka'* house when I saw Sutton and Worgan coming. Sutton went to Paora's, and! Worguu to Waka's house; T overtook them at the \erandaof Paora refu-ed to give nve any spirits. E. A. Carlyon deposed ; I was solicitor for Paora" and Waka Xawaiini and Tareha in the action brought, in the District Court in October, 1871. It was brought against Cash more, as Sutton's tenant, to obtain an injunction. Paora's name appeared in the affidavit He has since repeatedly declaimed any title to the timber, but I did not think it worth while to remove his name. There were six grantees; but I only inserted the names of three. Mr La?celles then addressed the jury, in a long and eloquent address. He maintained that the signature of his client had been obtained to a document divesiing him of his property while hewas in a state of helpless intoxication. Not content with the state in which he found him—just awakened from a drunken .slumber —Mr Sutton had plied him with more spirits till he was in a state of utter and hopeless imbecility* What use was the explanation or trauslation of a deed to a man in that state and could ho be charged with wilful and conupt peijury lor denying a signature thus obtained, of which he could have no possible knowledge or recollection ] Language was too feeble to sufficiently characterise the conduct of the men who had obtained the signature of his client under such circumstances. He then adverted to Paora's statement that he had not received the consideration, in support of which he showed +'roin Mr Sutton's evidence how minute a portion was paid in money, ami how the great bulk was computed of past liabilities and goods, of which no account of auy kind had ever been furnished. It had been stated that Paora had been shown Mr Sutton's ledger* Would any of the gentlemen present, possessing the advantage of being able to read the book in question, have been satisfied with such an inspection of Hi long running account extending to. hundreds of pounds ? As regaided the ammunition, he regretted that the evidence produced, while corroborating the statement alleged to have been false, did not so sufficientlv far to remove the mystery surrounding this very obscure transaction. He had shown conclusive? ly that the quantity of ammunition which the defendant took home was greatly in excess of that authorised by the Custom House permit—a fac*. from which various inferences could be drawn, and which established the truth of his client's statement on the subject. As for the denial of the signature, Paora had no object to gain by it, had he known or recognised the tran&action to which it refened. He had already filed an affidavit in the District Court setting forth that he had been inveigled signing that very document, and to have knowingly denied it would have completely stultified him. He would tell the j'iiy why this charge of perjury was brought. Steps had been taken by Paora to reverse this deed, on grounds which had been shown to some extent in the present case j these efforts, if successful, would have upset Mr Sutton's bargain; and an action would lie against Mr Sutton and Mr Worgan for conspiracy He had now touched upon all the points of alleged peijury* and he felt confident that the jury would acquit his client, and not allow themselves to be made the instrument* of private malevolence. Mr Wilson briefly replied. He would simply ask the jury to discard every word of the Maori evidence adduced in this case. It had evidently been just got up for the occasion, and i did not contain a single word of truth. In so saying he was not reflecting upon his learned friend—not at all—the. Maoris themselves were quite able ta,j see that Paora had got himself into trouble, and naturally wished to got him out of it. The '>toiy about the ammunition was too a'»suid to obtain a moment's credence. The learned coua-| scl for the defence called it mysterious, j

There was no mystery in it —it was pure invention—unless they could believe that Mr Sutton, Mr Beyer, and the Collector of Customs, bad entered into a conspiracy against the prisoner. As for the consideration, the documents before them would sufficiently show the prisoner had admitted and acknowledged its receipt by his own signature. His Honor carefully summed up the ra.se. He regretted that so much of the time of the jury had been occupied in bearing discussions on points of law, with which they had no concern, but which must abide the decision of the Court of Appeal. The crime of perjury was one of a most serious and 'langeroii9 kind, and it was important that whet ever it was shown to have been committed it should be visited with the heavy penalties of the law. His Honor then gave a summary of the preliminary proceedings, during which the alleged perjuiy took place. With regard to the defendant's statement that he had not received the i>3oo consideration foi his land, this, taken literally, was true, and could not, therefore, be looked upon as perjury, though he might have received the consideration in other ways. To prove perjury the English law required the oath of more than one witness. Regarding the defendant's statement that he had received no goods except ammunition in consideration, the only evidence to the contrary which had been adduced was the unsupported oath of Mr Sutton, which was insufficient in law to prove perjury. There were two other assignations of perjury—the denial of the signature to the deed, and the account of the manner in which the ammunition was obtained. There was the evidence of two witnesses that the defendant signed the deed, and the fact was not denied in defence, but was met in a different way. The evidence of the natives brought, particularly of the attesting witness, was such a* to throw very strong imputations upon the two witnesses whose testimony established the first assignment. The terms in which the learned counsel for the do fence had stigmatized their conduct were fullv justified 'if the native evideuce was accepted as trae. From this eu'denueit would appear that the defendant, while in a state of drunkenness, had been supplied with more spirits by one of the parties to ind ice him to sign an important deed. IT this was true, steps ought at once to be taken :o set aside the deed as contrary to equity and good faith. The strougest reprobation in this case would attach to the pet son accredited by the Government—the licensed interpieter who had been a party to so discreditable a transaction. It would be for the jury to consider carefully this part of the evidence, for if the defendant was in tie state of mind described when the signature was obtained, he could not be expected to remember the circumstance, and in denying it would not be guilty of wilful peijury. Against, this, however, appeared the important fact that eight days afterwards, on the 26th of April, the defendant, in Mr Sutton's shop, signed the document G, which was translated lo him by Mr Hamlin, in which he acknowledged being liable to Mr Sutton to the extent of .£251 19s, and consented to this being placed against the £3OO purchase money of the Mangateretere block. This implied a knowledge of the transaction, and was almost conclusive evidence of the first assignment. The remaining point was the manner in which the ammunition was obtained, and on this point the defendant was contradicted by two witnesses—Mr Sutton and Mr Bever. His Honor then read the evidence, making \i\< comments as he proceeded.

The four assignments of perjury, as committed lo the jury, were to the following effect:—l. Denying the signature to the deed F. 2. Denying the receipt of the ,£3OO consideration! 3. Deny ing the receipt ct good* in consideration. 4 Falsely stitiug the manner in which the ammunition was obtained. His Honor considered that the second and third assignations, for the reasons already given, could not be taken to he perjury, not having been disproved. The charge really rested on the first and fourth assignations. The jury retired at ten minutes to 6, and returned at twenty-five minutes past 7. They (bund ihe defendant

guilty on the first,- third, and fourth assignations, and not guilty on the second. As this verdict was subject to the legal points reserved for the Court of Appeal, the defendant was bound over to appear if required at the next criminal sittings of the Court, to receive sentence. This concluded the criminal sittings, but as the case of a native irregularly confined in the Napier jail required to be considered, the Court was formally adjourned to Saturday, the jury having been discharged with the thanks of the Queen and the Colony.