SUPREME COURT.

New Zealander, Volume 1, Issue 27, 6 December 1845, Page 3

SUPREME COURT.

On Monday morning, the Ist instant, the Session for Criminal cases commenced in this Court, at 10 o'clock. As soon as the Grand Jury were sworn, his Honor the Judge addressed them as follows :—: — Gentlemen of the Grand Jury,— l find in the calendar, five offences ; two are described as larceny, a third a breaking and entering a dwelling house, and stealing therefrom. I have read the depositions, but find no point on which it appears necessary to offer to you any remark. The charge in each of the two remaining cases, is one of a less usual kind, it is that of maliciously damaging a vessel with intent to destroy the same, or to render the same useless. The words of the enactment constituting this offi-ncc, A. 7 & 8, G. IV, c. 30, s. 10, are these, " If any person shall unlawfully and maliciously damage (otherwise than by fire), any ship or vessel, whether complete or in an unfinished state, with intent to . destroy the same, or to render \he same useless, every \ such offender shall be guilty of felony ," I may men- | tion that the words "otherwise thau by fire," are introduced with reference to a former section of the same statute, whereby provision is made for the offence of setting fire to a ship or vessel, with a criminal intent. Now when you come to consider the evidence which may he brought before you in these two cases, two main questions will arise, — Was the action done maliciously ? — and was it done with the particular intent described in the statute, as to the ] wml " maliciously,''— it is the general rule of the Criminal law in regard of a charge of a malicious offence, either against life or against property, it is not necessary to give evidence of any special grudge or personal malice against the party injured. It is enough if the act done be such as to manifest a general recklessness as to the lite and properly (as the case may be), of others. In the ca*e then of a malicious damage alleged to be done to a vessel, it will be quite sufficient to satisfy the meaning of this word, " malicious," lo shew that the act being unlawful, be also wilfully done, that ".s to say, not the result of any mere negligence or mischance, nnd that it be *o done as to manifest a spirit of reckless and unjustifiable disregard for the rights and property of another. But the question to which I desire especially to draw your attenti n is the second, — Was the act done with the- particular intent described in the statute? that is to say, with intent to destroy the vessel to render the same useless, according as you find the one or the other of these two intentions chained in the bill of indictment. This i, the main question, because at this point lay the boundary of two classes of offences; the line which separates such malicious injury to ships as amount to felony, from such as fall short of that degree of ci iniinality. For if the damage be done to a vessel short of destroy- , ing or rendering her useless, though that damage ■were done by ati unlawful and maliciou* act, and with a criminal intent, yet if the intent were only to <lo an amount of mischief shoit of destroying the ship or rendering her useless,— if the intent of the evil doer stopped just at the point where the mischief stopped, the offence committed would not fall withm this enactment. It would still be punishable as a malicious injury to property, but puaishahle in a summary way, before a Justice of the Peace. Your business, therefore, gentlemen, will be to keep this point carefully in view, whilst weighing the evidence in these Uvo ca^es. Gentlemen, Ido not find it needful to detain you longer. The foreman of the Grand Jnvy, R. A. Fitzgerald, Esq., preseuted a true bill against Edwin Rose and George Botlomley, for feloniously receiving goods value twelve shillings, knowing the same to have teen stolen, on or about the 23rd September last. Mr. Pott opened the case, and stated the facts to he proved in evidence, that the several articles were found in boxes, in a house rented by the prisoners, within one week of the robbery. Richard Webb, waterman, residing near Queen street, stated that on the 16th September, he was absent from home during 6 and 7 o'clock in the evening, for about half an hour. On his return, he found that the door had been opened by a false key, and his chest broken open. He missed two blue shins, one inside shirt, a pair of while moleskin irowsers, and one pair of boots. On the 23rd Sept. he was examined by the Police Magistrate, as to the identity of the various articles stolen from him. He could identify the blue shirt, (which was exhibited with the other things in court) by white thread being sown over the black, buttons in a particular manner, by himself. The same with the trowsers. To the boots he could not positively swear. David Campbell, shoemaker, living in Field's lave, deposed that he made a pair of boots lor Richard Webb. The boots produced, were made by himself, but could not swear they weie the identical pair made for Richard Webb. James Smith, chief constable, stated that on the 21st Sept., he searched the bouse occupied by the prisoners. He found the prisoner Bottomley within, and in a box found the shirt, the mark of which corresponded to previous information received from Webb. In another box, which Bottomley said belonged to the prisoner Rose, he iouud a pan ot moleskin trowsers, and a pair of boots. Joseph Hill, sawyer, residing in Queen street, deposed that the prisoners rented the luuse of him, at three shillings pur week.

j Mr. Pott observed that be should close his case by merely calling the attention of his Honor and the Jury to the confession of the prisoner before the Police Magistrate, as to the box being his property, but that any body could have put the things into it. Mr. Hardy, clerk to the Magistrates, proved to the depositions before the Magistrates. His Honor the Judge then addressed the JuryIn this ca6e the evidence is clear as to the fact that the goods of the prosecutor were feloniously taken and that those goods were found a few days after the felony was committed in two boxes, in a house tenanted by the prisoners, by whom also no account is offered of the way in which the goods came there. In this state of things a strong presumption of guilt arises against the prisoners. But the main question is, the nature of that presumption, — are they to be deemed to have stolen the goods, or to have received them knowing them to have been stolen. They are indicted as> receiving only. Now, according to the rule of the Criminal law they must be presumed themselves to have stolen the goods. For they do not account for their possession of the stolen goods, and there appears nothing to show that any other person stole them. To sustain an indictment for receiving stolen goods, it is usual either to give evidence of* the way in which the goods came into the prisoners^ hands, and to show from the prisoners'conduct and other circumstances, that the prisoner must have had a guilty knowledge at the time he obtained possession, or at any rate, (if no such evidence can be produced) to shew grounds for believing that some other person actually stole the property. In the absence of all such evidence, and supposing the case to be left to rest on the simple fact of recent possession, unexplained and unaccounted for ; the [ prisoner is to be deemed the thief, and oo this ground t alone convictions for larceny constantly take place in , England. The Chief Justice then proceeded to read ' a note of an English case, in which the pnsouers were j detected carrying away stolen property from a place where it had been concealed, and were indicted as receivers Mr. Justice i'atteson said, "there is no evidence of any other person having stolen the property. If there had been evidence, or if there had been strong suspicions that some one persiiti stole H, those circumstances would have been evidence that the prisoners received it knowing it to have beeu stolen. But 1 confess it appears to me rather dangerous on this evidence to convict them of receiving, it is evidence on -which persons are constantly convicted of stealing." So gentlemen, if the evidence leads you to suspect that some other person stole this property, you may convict the prisoners for receiving. —If not, the proper course will bo, to acquit the prisoners on this indictment; in which case, I will order them to be detained until a fresh bill of indictment can be prepared, and preferred to the Grand Jury. Verdict— Not Guilty. The foreman of the Grand Jury brought into Court two bills. A bill lor larceny, by D. Smale, against H. J. and J. Merrett. — Not found. A bill for maliciously damaging a vessel, called the Ocean Queen with intent to destroy the same, by Thomas Black agaikst Ann Turton. Not found. Samuel Nelson was indicted for maliciously damaging a vessel called the Vixen, so as to render her useless, the property of John Mackey of Sydney. Mr. Merriman opened the case, and briefly recapitulated the facts to be proved in evidence. John Griffiths, steward and cook of the Vixen, deposed that at Auckland, on the 17th July last, Mr. j Storey the mate, bad the watch until eiqjVit o'clock in the evening, when he was relieved by the prisoner. Soon afterwards the witness heard a noise, and went on deck, when he saw the foresail overboard, going down with the tide. The prisoner was stauding on the larboard gangway. The foresail was previously in the hold. Witness called the mate, who came on deck, with whom the witness endeavoured to save the foiesail. Found the topsail on deck, but with the mate, put it in the hold, and fas- < tened down the hatches. There was another person jon board, asleep below. Witness went below at a j quarter past nine, at which time the rigging was i whole, remained below about a quarter of an hour, I when hearing a noise on deck went up to ascertain I the cause, when he found all the running rigging I forward, cut on both sides. The prisoner Nelson was the only person on deck. He called the mate, who remained with witness on deck until the prisoner went on shore. He heard something thrown overboard. Cross-examined by Mr. Bartley — The night was dark, very dark. H. R. Cretnay, Shipping asjent, at Auckland, stated that he was agent for the Vixen. John Maekey of Sydney was the registered owner of the vessel. The witness did not know the state of the vessel on that day. The effect of cutting the running rigging would be to render the vessel unfit for sea. Mr. Bartley addressed the Jury for the defendant. There was no evidence of two things. First, the ownership of the ves.se! had not been proved. The evidence of the witness., Cretnay, was no proof. He hadseen some paper, which he considered the registry of the vessel, in which the name of Mackey was inserted, as the owner : but no document was forthcoming to prove the fact. In all ciiminal cases, in which the life and liberty of the subject were implicated, the law required more explicit and clear evidence than in civil cases. Why was the register not produced ? In the second place, — that the rigging was cut, was indisputable ; hut no evidence or proof that the prisoner committed the act. That something was thrown overboard, might be al=>o true, but it might have been dirty water, for there was no proof of what was, so thrown over the side. The nijrht was dark, the witness Griffiths, had not voluntarily given the words, that the night was veiy dark. There was no proof whatever, thai the mischief had been done to the vessel by the prisoner, and indeed if there had, in point of law, which was more for the decision of his Honor, than for the Jury, the indictmeut was not tenable, inasmuch as the vyordb of it were — " with the malicious intent to destroy and iencleruseless the vessel.'' Under these circumstances, he confidently trusted that the verdict of the Jury would be in iavov of the defendant. His Honor the Judge said— with regard to the owuership of the vessel, although it might not be strictly and clearly proved by the evidence adduced, he should not withdraw the case on that account, for there were analogous cases in which the ownership of houses had not been required, to he so very strictly proved in the court. The main point for the consideration of the Jury was— What inference was to be drawn from the evidence before them.— Was it an injury not sufficient to render the vessel useless ? 'J he Jury must satisfy themselves that the prisoner actually committed the injury, then further decide whether the injury so done, would vender the \essel useless, and that the act was done with a malicious intent. Verdict— Not Guilty. Thomas Hill and John Buckle, were indicted for stealing three sails, and some pieces of rope, the pro-

perty of the Baron dc Thierry, on the 11th October, 1845. Mr Merriman, for the prosecution, stated on the night oF the 10th Oct., Mr. Richard de Thierry left the boat with the sails and ropes quite secure, and on the following morning returning to it, missed the property in question, which was traced to the pri soners. He then called Mr. Richard de Thierry, son of the prosecutor, who deposed that he left the boat with mainsail, foresail and jib, on the beach in Commercial Bay, opposite Mr. Nathan's store. On the following morning, he missed the sails and ropes from the boat. Afterwards went with the Chief Constable, and searched the house of the prisoners, when they found the three sails under a bed in an inner room. The witness could identify the satis produced in Court, by a piece of red tape being sown into them, and likewise the rope by a particular splice. [This witness underwent a long cross-examination by Mr. Bartley, but his clear plain testimony was unshaken.] Barou de Thierry was examined as to his exclusive ownership. James Smith, chief constable, deposed that on the Sunday morning, he went to the house of the prisoner Hill, where he found the prisoner Buckle at work on an old sail, with the piece of rope which Mr. Richard de Thierry identified as the property of his father. The prisoner Hill said that he had only that old'eail, but on going into an inner room, he found, the three sails produced, under a bed. He took Hill into custody, but while in the inner room, the other prisoner left the house ; subsequently, he found him in the kitchen of the Commercial Inn, and he came with him without trouble. Robert Kent, sailor, in the employ of Baron de Thierry, swore that he spliced the rope produced. Mr. Bnrtley briefly addressed the Jury for the defendants. He asserted that there was no evidence to prove that the prisoner Buckle, was cognizant of the robbery, or of the sails being in the inner room. He acknowledged that circumstances were unfavourable to the prisoner Hill, but he was certain that if any doubt existed in their minds on the evidence adduced, to identify the sails and rope, that they would mercifully give the prisouers the benefit of the doubt. Three persons were called to speak in favor of the prisoners during the last three years. His Honor the Judge then called the attention of the Jury as to how tar the facts were proved against Buckle. That the sails were stolen and subsequently identified, were sufficiently clear. Being found in the House of Hill, and the assertion to the constable that he had no sails but an old oue, were facts ior their consideration. The Jury then retired, and were absent about three hours, when they returned into Courl finding their verdict — Thomas Hill, Guilty ; and John Buckle, Not Guilty. The Judge then addressed some pertinent observations to John Buckle previous to his discharge. Edwin Rose and George Bottomley who had been acquitted in the former part of the day, on an indictment for receiving stolen goods, were again arraigned for stealing- goods to the value of twelve shillings, the property of Richard Webb. The evidence was precisely the same as in th e former trial, and the Jury without troubling the Judge, immediately found both the prisoners, Guilty. On Tuesday morning, sentence was passed on the convicted prisoners, by his Honor <he Judge, as follows ;— You Thomas Hill have been indicted for having stolen certain sails and certain pieces of rope, the property of Baron deThierry, and on that indictment you have been found guilty. The sentence of the Court is, that you, Thomas Hill, be imprisoned in the common gaol of Auckland, fur eighteen calendar months, and that you be kept to hard labour. Also: You Edwin Rose and George Bottomley have been found guilty of having stolen certain articles of wearing apparel, the property of Richard Webb. Your oftence is not attended by any ot the ordinary circumstances ot mitigition. You were not tempted by the sight of property left open and exposed by iis owner. Tlu goo'ls by you leloniously taken had been placed by the prosecutor under lock and key, and. under the shelter of his own roof ; having found your way to the place where these goods were deposited, you used violent means to obtain possession of them, the security of which the prosecutor, though using all reasonable care and prudence, failed to attain loy reason of your crime ; the law must now seek to afford that, to others, by your example. The sentence of the Court is, that you Edwin Rose, and you George Bottomley be each of you transported beyond the seas, to such place as his Excellency the Governor shall appoint for the term of Seven Years.