Auckland, Wednesday, 1st December, 1847.

New Zealander, Volume 3, Issue 157, 4 December 1847, Page 2

Auckland, Wednesday, Ist December, 1847.

Before Hit Honor Chief Justice Martin., The Court opened at 10 o'clock, and the foliowioc Gentleman were empannelled on the Grand Jury," ' I R. A. FitzGerald, Esq., Foreman. J. A. Buttery, J. L r Campbell, W. Davies, W. S.* Grrahame, J. I. Montefiore, L. M'Lachlan, H » Weekei, R. Wood, M. Whytlaw, A. Kennedy^ J. Hargreaves, J. A. Smith, and J. M'DougalV JiiSqrs. or His Honor then addreued the Grand Inqneit at follows GenIXEMIN OF TRK GRAND JURY— I ha TO read the depositions in the several cases which 1 are likely to come before you to day. I End amongst them one which will require of you the exercise of great care and discrimination. In the case of which I ipeak the offence charged ii cattle stealing, the stealing of a cow. To constitutt stealing; whether ijfi'th'e~ simpler or in the more aggravated form, there muit b'ei a "felonious taking." I recur to the definition of, the offence, not because I suppose you to be unaware i " of * it, but became the terms of the definitio n itself will be the best guide toward a right determination W the questions you will hare to consider. ; And alio be- - cause it is of the utmost importance,, for the , security of us oil, {that the boundaries of the oriminnl law • should be accurately known and observed.- There must then be a taking and also a felonious intent "accompanying the taking. "When we speak of a "taking,'? we mean that the goods muit be approprkted, wrongfully and without the consent of the owner ; and by a. ' felonious intent, we mean a fraudulent purpose in the r mind of the taker to despoil the owner and permanently to deprive him of the benefit of his property.—There is ordinarily no great difficulty in satisfying tke mind as to these points, but there is one peculiar class of cases in which there is often found considerablediffi--' culty in coming to a safe conclusion. This clan con- - sifts of cases in which before the person accused 'poi-' sessed himself of the goods, there had taken place be* i tween that person and the owner, dealings or negotiations for the purchase or hire of those very goods. Of this sort is the case lam speaking of. Now^in reference to these cases, and in order to distinguish b«tween such acts as partake of a felonious character.and suoh as do not, a very important rule is laid down by * our criminal law. It is in substance this. Whenever the owner has roluntarily and unconditionally parted* • with his whole property and ownership in the good* ~ and tiansferred it to another person ; then, how- " ever fraudulent or wrongful tke purpose and design " of that person may have been, there is no felony. The) ■ ' owner has, in such a case, of his own will ani motion, 1 ■ handed over his property to another. -He may hay been cheated or imposed on, but his goods were not ''■' taken. He has a remedy by action, nay, the acts?*of^ the person who has obtained possession may have been^ criminal in another respect, and in another formvbut-'*' they do not amount to larceny. But if the owner,in parting with his goods,did not intend to divest himself of th» whole of his ownership therein ; at, if he transferred^ them to another person for a temporary purpose or-^ subject to some condition to be performed ; 'then if/5* that person appropriate to himself the whole j cont"roul < and benefit of the goods, it is plain that he assumes ■** to himself that which was not intended to be trim--?' ferred to him, he takes that which was never given j^ there is a " taking" and, if a felonious intent acccm-'&\ panied the taking, there is a larceny. If the distinc-^ tion thus stated in general term* be not sufficiently clear, an ejample or two will probably make it so.-» J ; Take the case of » shopkeeper selling goods' to a" cut-, tomer on credit. The seller parts with the whole pro—: perty in the goods/ Of his own will, he divests hira-si self of his ownership. He ceases to regards the goods'**' as his own, he looks only to the price. --Now?' tho^ customer may not intend to pay ; he may entertain'afc '^ the time the most settled determination to despoil- the' ul< owner of his goods. Yet he -is cot indictable for ~?lar-?^ ceny. He may, it is true, under certain circumstances be indictable for another offence : but it cannot -bi^ Mid the goods were stolen, for they were not 'taken.',"' They were voluntarily and wholly parted with by the - 5 owner. But suppose the shopkeeper, in the course ofbargaining,but before any bargain is completed; handsthe goods across the counter to the person with' whom he is dealing, for inspection and examination by him*- e> and merely with a view to induce him to become' the/* 1 purchaser ; and that person thereupon fraudulently - - runs off with the goods and appropriates them ; here is larceny. For the owner intended to part; not with the property, but, with the ■ temporary*" possession of the goods and nothing more. So if a man sells goods on terms that they shall not be deliver- : ed except on payment of the price, and the purchaser ';; of some fraudulent trick possesses himself of the goods and appropriates them without payment ; there \ is a larceny. For^, the owner never intended to part" wholly and unconditionally with his property. All that I say of an owner of goods applies equally- to an.a'gerit' * of the otracr, vrhenever the agent hut full and uflix«

Mricted authority to dispose of the property. With regardViuph an{»S«nt precisely the same question ariies at would arise with regard to the owner. Did he part the whole property the in goods or not ? Thus much as to the •taking.' The remaining element of the offence is a felonious intent such its I have already described. It ii to be remombered that this intent muit exist at the time of the taking and concur with it, in order to render the offence complete. Any purpose however dishonest, conceived at a subsequent time will not make the taking itself felonious Upon ihe vhole then, Gentlemen,— lf it shall appear to you that there was a complete sale if the cow was sold absolutely and unconditionally, then, even if you find apparent reason for supposing that the prisoner was I acting .in the prosecution of a fraudulent deiign to despoil the owner of his property and to make no payment for it, there will be no ground for the bill. But if there shall appear to you any ressonable grounds for supposing that the agent did not sell the cow out and out but snbject to a condition, and that the prisoner wrongfully and contrary to that condition and with a felonious intent took possession of the cow, it will be your duty to find a true bill, in order that the whole matter may be subjected to a more complete and searching investigation. I hardly need suggest to you that with respect to the exUtence or non-existence ofa criminal purpose of mind in the prisoner at the time of taking possession of the cow, his transactions and conduct both before and after that time— the whole context (I may call it) of the case will furnish matter for obvious and important inferences. True Bills were found against Joseph Williams, (on two indictments,) Simon Rich, Thomas Cratchley, and Andrew Branagan. Joseph Williams was placed at the bar, charged with having entered the house of J. C. Blackett, Esq., on Sunday morning, 26th Sept. last, and stealing a counterpane, several sheeti, and linen shirts, and a quantity of wearing apparel. The prisoner pleaded •• Not Guilty," and a jury having been sworn of winch Mr. H. Keesing, was chosen foremaa, he was placed upon his trial. The Attorney General opened the proceedings by detailing the facts of the case, to prove which he called J. C. Blackett, whosa evidence went to prove that he was awoke by a noise in his house on Sunday morning, the 26th Sept. last, at about a quarter to 4 o'clock, when he got up and found the prisoner on his verandflh, with a bag containing the articles named in the indictment, which proved to be his property ; the prisoner was immediately seized by the witness, and held until his servant came to his assistance ; witness then, with the assistance of his servants, conveyed the prisoner into town and gave him in custody to the po,JAk. . , J. Green, lervant to Mr. Blackett, was examined and corroborated the former evidence. r The Attorney General briefly addressed the jury, and His Honor the Chief Justice summed up the evidence, when the jury returned a verdict of Guilty. S. Rich, was then charged with stealing a cowi the property of Mr. Samuel Clarke of the Tamaki, on the Ist September last. The prisoner pleaded " Not Guilty," and was placed on his trial before the same jury. The Attorney General conducted the prosecution, •nd called Samuel Clarke, who, being sworn, stated that he was a settler reiiding at the Tamaki ; he had certain csttle in charge, running upon his farm, in July last ; in the event of any of these cattle being purchased, the purchasers could not remove them without an order from Mr. Oiborne ; be lost a head of cattle off his run earljjn September; no person oould become legally 'tfflslfilied of it without an order from Mr. Osborne ; he, the witness, had a conversation with the prisoner in the month Of July lait, when he enquired if witness had auy cattle for sale, witness told him he had one of Mr.Hamlin's, which, he thought, Mr. Osborne would sell ; it was the same cow that was subsequently lost ; had further conversation with prisoner in the middle of August ; prisoner then asked where the cow was, witness told him where she was running: met him again on the afternoon of the same day, when he aiked if he could take the cow ; witness told prisoner that he must first give him a receipt from Mr. Osborne.— but, afterwards correcting himtelf, he said authority, and then he might take her at any time ; had no further communication with the prisoner until the Ist September, when he asked witness if the cow drove easily ; this took place at a sheenfold, about the centre of the farm ; knew the direction in which the cow wai running, it was by a large swamp near the centre of the farm ; prisoner said he had a bullock in the iwamp that he wished to drive away, and he requested witness to allow him some of the cattle to assist in driving his stag out of the swamp } witness told him he could have them, but not to drive them off the run ; had no further conversation with prisoner until the 10th Sept. ; prisoner never brought an authority from Mr. O*borne for the cow ; missed her on the 2nd September, and hunted for her in every direction and made «*ery enquiry after her ; went to Mr. Rich's; looci after, met a person named Gardiner, a stockman ; then went home, arid afterwards returnEpura, where he met the prisoner cloie to his told him not to come for the cow as she Hiad, been lost off the run; prisoner sad that he had her on this side the run on the Monday previous ; Hgjd^not see priioner again until he met him at the JrPolicV office ; after seeing the batcher at Mr. Hart's " Slaughter-house at Epsom, witness went to Mr. McVay's the tanner, where he saw the hide of the missing cow ; the cow was taken out of his custody yrithout his permission. Cross-examined by Mr. Bartley. There was no obstruction or impediment offered, nor concealment manifested as regarded the hide at Mr. Hart's Sltugh-ter-house ; it was at the slaughter-house that witness learned where the hide was ; the slaughter-house is on an open space, and there ii nothing about it that would indicate a desire for concealment ; has known the pii•oner and believes him to be a respectable man, belonging, to a large and respectable family; the prU eoner said in presence of witness, either to him or his cousin, that he had agreed for the cow, but witness did not remember the price named ; did not remember it was a cheap bargain ; Mr. Kelly was pre•eut on one occasion ; remembered Mr. Kelly making lOHie observations on the word ''receipt," and saying that "authority" was much better ; but did not hear him saying that " receipt or order was an awkward ( word, and that authority was better ;" the remark he Made was— perhaps you mean authority ; witness had said in the Police office, when examined there that he had no communication with the prisoner about the cow after the 2nd September; had communication with the prisoner about the cow on tho 10th September, and had corrected himself at the Police office on the same day, directly after he bad made the former statement (here the depositions of the witness, in the Folipe office, were read) ; witness remembered saying that he had not a good memory for dates— knew that the prisoner was very deaf— -hVd. not Jfcold any-one to go and stop the proceedings— did not give Osborne any authority, nor express any desire, to settle the matter ; ,

did not remember saying anything about expenses, but would not swear that he did not speak of Police office expense!— would not iwear that he did not speak to any one else about expensei — had said that he was very sorry he had to take the matter up in the way he did. By the Attorney-General — The prisoner is deaf, but witness was not— the prisoner is not dumb— he did not teil witness on the 16th September, that he had taken the cow or purchaied it, until he was charged with the offence. Joseph Osborne, being sworn, stated that he was a settler on the Epsom Road — knew of some cattle being in the keeping of Mr. Clark— knew of one white cow being in Mr. Clarkes custody in September last— had been authorized to sell that cow — made a partial agreement witb prisoner far it before the lit September last ; did not coniider the agreement completed when the cow was taken away — she was not to be taken away without his consent, and he had never given his authority for her removal— witness asked £14 for the cow, prisoner had offered £13, which offer was accepted— this wai in the latter part of July— prisoner said he might not want the cow for eight or ten days, but when he did, he would come to witness and pay him for itwitness said when he should do so, he would give him an order on Mr. Clarke for the cow — prisoner did not pay the money, and get an order for the cow; did not speak to htm again about the cow until the morning on which the information was laid — the prisoDer never told witness that he had taken the cowsaw the prisoner in the paddock about nine o'clock on the morning that the information was laid— had some conversation about the cow at that time, prisoner of* fered to pay for it— he said, "lam very sorry for what has happened, on account of my Father and familymore so on their account than on my own ;" witness told him that he could not take the money, but if Mr. Clarke was there, perhaps it might have deen taken— went into town between 11 and 12 o'clock, and accompanied Mr. Clarke to the police office— saw the prisoner on the afteinoou of the snme day— met him in the domain, og returning home from the police office— he asked how the case stood ? witness said that it was put off until the following Monday — he said he had the money to pay for the cow, and hereturned with witness to his house— witness told him that if he could see Mr. Clarke and consult him, perhaps he might stop the proceedings. By Mr. Bartley — Prisoner never denied huving taken the cow—received payment for the cow afterwards — his sorrow might have been occasioned by the police office proceedings, but witness thought that prisoner admit* ted his guilt by saying he was torry for it. By the Attorney- General — Witness thought that he wouW feel indignation rather than sorrow, if he was accused of a felony, and felt innocent. Robert Barnett, butcher for Mr. Hart, deposed that the prisoner brought a white cow to the daughter house on the Ist September, which was killed on the 2nd, and the hide sent to Mr. Vay's tanyard. The prisoner had told witness on the Tuesday, that he was going up on the Wednesday morning, for a cow that ho had bought from a Miisionary for the mm of £13. By Mr. Bartley~"There was uo desire for concealment manifested by the prisoner, all was done openly ; the beast was 16 hours in the stockyard before she was killed. [ William Hart, being sworn, itated that the prisoner had been employed by him as a stockman, up to the 2nd September last — had purchaied a cow from him some months before that time, upon which he advanced the sum of £10— and he contracted to deliver witness two head of cattle at five pence per pound : some time in June he delivered a small steer, and on the Ist Sep. tember, a very fine cow, of a light brindle colourabout two days before this the pi isoner told witness that he was now prepared to deliver the other beast according to contract— the cow waa delivered on the afternoon of the Ist September, witneu did not see her delivered, but he saw the prisoner on the same night, when he said that the cow had coit him a long price, and asked witness to give Mm s£d. per lv. for her, and he would deliver another at a future time at 5d. ; witness agreed to this proposal : on the following morning witness went to the slaughterhouse, and the beast had been knocked down, she was an exceedingly tine one, and he agreed to give a lump sum for her of £16— it turned out that she did not weigh go heavy, and the sum ultimately paid was £15-f>witness asked prisoner whether he had bred it, or where he had obtained it ? He either aaid that he had bought it from a Missionary, or that it was a Missionary breed : saw the prisoner on the 3rd September, who said there was some mistake or misunderstanding between him and the person from whom he had purchased the cow, and that Mr. Clarke had been making some enquiries about it at the slaughterhouse. By Mr. Bartley— There was no concealment whatever ; if the object had been concealment, the prisoner could not have brought it to a worse place, for the slaughter-house is constantly visited by the stockkeepers in the neighborhood, who know all the cattle around the district — they came to see the beastit being a particularly fine one. Mr. Rich, lenior, the father of the prisoner, was there when it was killed— witness thought that the prisoner said the cow cost him £13. J. M'Vay, tanner, being sworn, stated that he received three hides from Mr. Hart's on the 3rd September, but did not notice them on the day they were delivered — saw some of them seven or eight days after —one was light colored, branded •• J H"— did not notice it until Mr. Clarke came to identify it, and it was taken away by the police on the next morning. By Mr. Bar tlej— There was no attempt made to conceal the hide. John Kelly, being sworn, s ated that he wai a settler ; near MounT E4?n— was present in August, when a conversation took place between the prosecutor and the prisoner, about a fat cow — Mr. Clarke took prisoner to where she was running— prisoner asked witness to ride that way and look at her— on returning, saw Mr. Clarke again, when he referred the prisoner < to Mr. Osborne for sin authority to g«t the cow— the price mentioucd, by Mr. CUrke was £14— Mr. Clarke said, " You bring me Mr. Osbome's receipt, and you shall have the cow 5" but, at the suggestion of the witness, he corrected himself and said " authority"— saw the prisoner some time after, late in Augmt, when he said that he had bought the cow for £l3—ltw him again about the sth September, when he said he had killed the cow, and that she had not turned out so well as he had anticipated— thought that priioner invited him to look at the cow when she was dead, but could not swear positively to that —knew that the prisoner was deaf. W. Smith, armed police, deposed that he executed a search warrant, in the house of Mr. M'Vay » and found a hide of white color with brown spots, marked <( j H" — there wai no concealment of the hide. This closed tht case for the prosecution. TOR THE DEFENCE, Mr. Bartley called—William Johnson, who, being sworn, stited—that he knew the priioner, andsaw him on the Ist September, was out with Mr. Taylor of the Tamaki, driving cattle for Mr, Baritow— when he came up, he asked witness if he had teen anything of a white poley cow, with redears, near Clarkes run ? he assisted witness in driving the cattle, and then went back to look for the cow he hftd mentioned..

Edward Constable, being sworn, said that be resided on the Epsom Road— remembered Mr. Clarke riding up before him 1 on the road, and stopping to speak to Mr. Osbornc— they were talking about Rich, and he heard the conversation— from what they said it appeared that Mr, Clarke had been in town and laid information against the prisoner, and in the mean time, Osborne hud settled with Rich for the cow— witness told them that the expenses would fall upon the plain* tiff— Osborne said that he had arranged with Rich to vay the expenses-— witness advised them to stop the proceedings, and Mr. Clarke desired Osborne to go and stop expenses. Rev. J. F. Churton, Episcopalian Clergyman of Auckland, bore testimony to the character of the prisoner—he had known him during his father's absence in England, when he was called on to attend the family in his Ministerial capacity, and from the conduct of the prisoner during that time, he (Mr.^Churton) had entertained a high opinion of his character. Mr. David Nathan, merchant, had dealing! with the prisoner during his father's absence, and on one occasion he had forgot to charge some articles against the prisoner which he had received, but was reminded of tbe omission by the prisoner himself ; he had therefore believed him to be an honest young man. The Attorney General and Mr. Bartley severally addressed the Jury ; his Honor summed up the evidence, and the Jury retired, and after about 15 minutes consultation, returned a verdict of Not Guilty, The Court was then adjourned nntil 10 o'clock on the following morning,

Thursday, Dec. 2. Joseph Williams was again arraigned upon a charge of stealing two frock coats, a pair of trowsers, and a waistcoat, the property of Mr. George Siison Cooper, on the night of the 14th Octc her, last. The evidence was veiy clear againit the prisoner, and the jury returned a verdict of Guilty. Thomas Crutchlby, a private of the 58th Regt., was placed at the bar, and charged with stealing two silver watches, in the shop of Mr. George Par ting ton, on the morning of the 13th Oct., last. The evidence was conclusive, and the jury found the prisoner guilty. Andrew Branagaw, alio a private of the 58th Regt., was placed at the bar and charged with having burglariously entered the house of Henry Daniel Ley a watchmaker, in Queen-street, between nine and ten o'clock on the night of the 20th November last, and stealing a silver watch case therefrom. Two policemen were standing within a few yards of the prisoner when he dashed his hand through a pane of the window, snatched something up,andran away ; they pursued and overtook him, and found the watch-case in his hand. The jury found the prisoner guilty. His Honor, thanking the jury for their attendance, dismissed them — and the Court was adjourned until the following morning.