SUPREME COURT. Auckland, Friday, June 1st, 1849.

New Zealander, Volume 4, Issue 314, 2 June 1849, Page 2

SUPREME COURT. Auckland, Friday, June Ist, 1849.

His Honor the C'lief Jtutlce took his ieat at 8 few minute 3 past ten o'cl ick, aad the criminal buiineu of the Session was oppned, The fo'lowing gentlemen were empanelled on the Grand Jury ;— Foreman— R. C. Barstow, Esq.; S. A. Bell, XV. Brown, J. Boyd, D. Barn, H. C*rle'on, M. Carter, W. S. Grahame, C. Lawlor. Thomas Lewis, J. 1. Monrefiore, 6. M. Mitford, H. Matson, E. Mayne, M. Wlntlaw, H. Weekrs, and J. Woodhouse, Esqs. His Honor addressed the Grand Jury as follows .—*, Gentlemen of the Grand Jury :— I have read the de. positions in the cases of the several piisoneri comini ted for trial at this Assize. There is only on* case on which any obse-vation is necessary. The offence charged is the felonious embezzlement of goods be* lunging to the prisoner's employer, but the offence charged seems to Ml imre p-operly within the del* cription of theft or larceny. For though the word embezzlement is often used in common speech to express a fraudulent appreciation of an employer's property >n cases where the possession of the property is derived from the owner himself, and though it is used in the same seme in some Statutes, yet the Sta'u'e of Geo. 4, which p ovides for the case of embezzlement by e'erki and servants is limited in its terms to the cats of persons who shall " by virtue of such cmp?nyment receireor take in o thrir possession any cha'tel, money, or valuable security, for or in the name, or on the account of their misters." Aud it is held that where th-i receiving is from the mas'er, as, for eiampli*, nil ere a clerk receives money from his master and mis« appropriates it, thp enactment does not apply. Ordinarily, where a person h:• merely the custody or charge of his master's goods, either upon the rrrster'a own premises, or elsewhere, under his superintendence, or control, such person if regmded as hating no posseiiiou of the goods distinct from that of the owner;' and, therefore, fraudulent appropriation by such person it deemed to be a felonious taking r rom the owner. But the particular point .to which I wish to draw your attention now is this i in this case, the parties appear not to have stood sole'y u on the ordinary footinpof matter and servant. I find it stated by the prosecutor that the prisoner was in the habit of taking goods on his own account, for which he was d biteti in the daybook. If it is meant that, with the knowledge and consent of his master, the prisoner was Itfc at liberty to take good* for himself, on trrms of paving for them like an ordinary customer, then ihe*e arises a question of great importance, not as to a mater of form or defi nition, but as to the su'istanct- of the proiecu ion. If the goo <s were at all taken under su<h a licens-or permiision as thit, there is no ground for a prosecution. If a man fi eely , not under the influence of fear or fraud, pirts with bis property, so as no longer to regard himself as retaining any right over the goods once parted with, but to look only to the price of the _oodi, he cannot . afterwards proceed criminally against the person to whom he has voluntarily transferred this property. Dishonesty, abne, without some specific criminal act, is not sufficient. The c*se is the same as that of a sale of goods oncredittoa purchaser who never intended to pay. There is no felonious taking, an 1 the person injured tnuat resort to an action. The relation between the part'es is that of buyer and seller ; and it m»ke» no difference that the relation of master and servant also subsisted between them. If the go >ds were parted with under the former relnti n, the remedy is only by an kction. It will therefore be necessary for you, in thia case, to ascertain whetbsr there was a peimission or licence given to the prisoner to appropriate some of fhe goods in the ship to himself, as to a purchaser ? and, if so, What was the extent of that license ? Did tht goods actually appropriated come within it ? The Grand Jury then retired, and three indictments having been hid before them, true Bills were found against Thomas Chipchase, Michael Bourke, and John Donnelly Fox. Thomas Chipehace was placed at the bar, charged with forcible violation of the person of Jane, wife of Francis Creighton, carpenter, residing in Victoriastreet The greater portion of the evidence we consider unfit for publication, but the examination occupied the entire day ; the Jury retiring about six o'clock, and, after an honr and a half's de.ioeration, returned a verdict " Guilty of an Assault." The Court was then adjourned until this morning » ten o'clock.