SUPREME COURT. Auckland, Monday, September 3, 1849.

New Zealander, Volume 5, Issue 351, 6 September 1849, Page 3

SUPREME COURT. Auckland, Monday, September 3, 1849.

Before Hii Honor Chief Juitico Martin. Edward Williams and John Henry Brown were ar* Migned on an indictment charging them with having I •tolen twocowi» the property of Mr. Alexander Gedde«, From the run at Maungarei, on the 23rd of Auguit latt. The Attorney« General opened the case for the pro■ecution in a brief address to the jury, aud proceeded to call witnesses. Thomas Henderson, settler, of Auckland, being sworn, stated that he was at Otahuhu on Thursday, the 23rd Angust ; knew the prisoner! ; he was standing in the verandah of Foley'a public«houte on that day, when he saw them, at neirly sunset, coming towards Otahuhu from the direction of Maungarei, driringm or seven head of cattle before them. Richard Newdick, carter, deposed, that he was the owner of a slaughter -home, beyond Freen an's Bay, which he let out for the 'use of others at so much r.y the beast ; knew the prisoners ; they bad used it twice ; lire* near the slaughtcr-houie himself; the prisoners came to his house between eight and nine o'clock on the evening of the 23rd August with six head of cattle; he did not notice on that night what kind of cattle they were; prisoners killed two of them on the following day ; there were four alive in the yard on the next day ; the two killed were one ol them a strawberry cow, the other a red one ; saw the hide of tbe strawberry one afterwards; the live cattle consisted of three cows and one steer. By Mr. Hartley — The cows tvere driven into the yard ;. priioners enquired of witness whether they might not drive the cattle into the paddock ; witness teiil them that they were too wild, and might break out ; the paddock was fenced aud railed in, but was quite open to the view of all passers by. By the Court— lt was about one o'clock oa the day afttr they brought the cattle that tlity applied lor the paddock. Charles Brown, a constable, .stated that he went to Newdusk'a slaughter-house on Friday, the 2 Ith August, abou r three o'clock j he saw the pri»on>*i" Brown there, and after a little time Williams came up in a cart ; witness examined the slaughter house ; there was a dead beast hanging up, and under it a red hide, and a little way from it a dead cnlf ; there was another hide |>i gin a place like a pigsty; [identified hide] ; saw three lite cows and a steer; the hide he found was fresh. t Nicholas Smith, sergeant in the Police, stated tha lie also went to the slaughter house on the 24th of last month ; be saw Newdick and the prisoners, Williams and -Brown; there were al»o three cows and a bullock there ; one dark poley cow, with circle on off tide, and S in centre ; a light red poley cow, with white spot on forehead, and like a figure 9 on near hip; a red and white cow, with cocked horn, circle on near ribs and S in centre ; a white and red bullock with a mark like O on right hip; witness asked Williams if the ctttle belonged to him; he said only the ballock^did, that he bought it at Connall and Ridings cattle sale, and that formerly it belonged to Dr. Weckrs ; he also laid, " I know who the three cow* belong to— and it they prosecute me for cattle •tealing, X can't help it;" prisoner would not tell witnen from wlte .cc he got the cattle. By Mr. Bartley— Witness swore the truth at the Resident Magist atrs Court ; he swore the whole truth ; he stated the same that he had now stated ; WiUwms said they were not bis cattle ; it is a usual thing for people to drive other cattle home along with their own ; had no warrant to go the slaughter house, but went there to. obedience to the o.dersuf his superiors, Alexander Geddes stated, that he is a stockholder at Onehunga, and that he had stock rutiuing at Maungarei, the road to which pi ice runs through Otahuhu ; he bad bit cattle from that run ; he w. Nt to Newdicks ■laupt'ter hsuse on S.tuiday, tbe 25th August, in search of them; knew the prisonns; he saw Tour bead of ea'tle at the slaughter house, two of which were his own ; they had not been taken from the run with his consent; he never sold the cows to prisoners or either of tketn ; as witness was corning to town on that morning he met Williams on the Epsom Road, nearly opposite tbe Panmujre Inn ; Williams stopped witness, and said he had got several cattle in a stockyard, some of which he believed belonged to witness, and hoped that he would not make much ado about it; wida<fi6 asked where they were; prisoner replied in Newdt£k'« stock-yard, and in possession of the police. By Mr. Hartley— Wi.liams was at liberty when witDeis met him; believed that it has often happened that cattle have been driven away to induce others to go; witness had done so with cattle under his own charge. By the Attorney-General— Had great experience in the management of cattle, but did not think it was usual for cattle to be driven two-and-tweuty miles for tbe purpose he had stated. By tki Court— Never sold them or gave any authority to tbe prisoner* to take the cattle away. William Gordon, settler, of Auckland, stated that he knew the prisoner*, and recollected teeing them on Friday 24th August' last, about half past twelve o'clock at Newdicks; witness went into the yard, where he 6aw Williams, and passed the tune of day ; h« noticed a beast hanging up; he then went into the paddock, the prisoner Brown going along with him ; wittiest saw iome cattle in the next yard, examined them, aud asked Brown to whom they belonged ; he fcaid " They belong to us;" witness asked Brown the price of one poley cow, spotted, rather dark ; Brown said tt-.e price was £i 10s. ; witness enquired the t>ri< c of another cow, with cocked hums; Brown said he wouid not sell her— th it she was one of the best dairy cows that Dr. Weekes had. By Mr. Bartley — Could not tell whether Williamt wjl present or not while he was priceing the cows ; witntA* had always been on' good terms with the pri. ■oners ; had never said that he would " stick it into Brown," or tbat he would transport him; there was no concealment of the cattle. By tbe Attorney-General— Witness believed that the prisoners were dealing with the cuttle as their own., This closed the case lor the prosecution, and there being no witnesses for the defence, the Attorney General addresned the Jury f jr the prosecution, followed by Mr. Bartley for the prisoners. The Chief Justice said that the Counsel for the prisoner* bid acted q >tte properly and according to his duty in caution:ng the jury not to be misled by any prevalent fee!jng in respect of this paiticular offtoce, However desirable it may be to repress so great and mischievous a crime, yet we art solemnly bound to be careful that w« atrike the guilty person and none other. The evidence has shown clearly that the coirs found in Newdiuk's yard are the property of the prosecutor, and that those cows were driven in by the prisoners. Indeed both the»e facts are admitted by the Counsel for the defence. It becomes incumbent on the prisoners ti show how it came to pass that their neighbour's property was so takeu into their possession. Williams has ntade two statements as to the cattle ; on both occasion! b« {Unclaimed sny ownership in

them. But it ia to be noticed, that the first itatement wu made to an officer of the police ; that the second wu made to the prosecutor nil] later, and after the cows had bsen actually taken into the possession of the police. As to the prisoner Brown, we find, according to the evidence of the witness Gordon, that on the Friday and (so far as appears) before the police had acted at all ia the matter, Brown claimed a property in the cows, and offered (o sell one of them. The simple question for you, gentlemen, upon the evidence is whether, under all the circumitancei— considering in particular the distance of Mangarei from Auckland, and considering the subsequent language and conduct of the prisoner! — they c»n be reasonably believed to hare driven them in without a criminal and felonious intent The jury then retired, and after a short absence, returned to court, and delivered a verdict of" Guilty" against .both the prisoners.

The prisoner! were again arraigned for stealing one ox, the property of Mr. G. O. Ormsby, from the same place on the same day. The jury that tried the last case was sworn. The evidence for the moat part was similar to that given iv the former trial. Mr. Ormsby proved the o of the bullock, and it wai also clearly identified by James Majtre, a man who had bought it for Mr. Orm by. The latter stated that he had not sold it to the prisoners, and that it was taken without his knowledge or consent. The brand mark upon the beatt, wai nnde by hit brand. A Geddes rated (hat at the time Williams met him on the Epsom road, and told him of having taken some of his cattle, he had stated that be thought he had some of Mr. Ormsby's alio, that he had taken by miitake. The jury was again addressed by the Attorney General, and Mr. Bariley. The Chief Justice, in the conrse of gumming Hpi remarked that the statements made by the prisoner Williams to the witnesses Newdick and Smith respecting the ownership of the bullock were in terms confined to Willumg himself. He laid, on both occasions, that he bought the bullock. It was made in the presence of the prisoner Brown, and if the language of the statement! had b?en extended to the acts of both prisoners, Brown might have been taken to make it his own by not saying anything by way of dinent from it. Supposing this statement stood alone it would be conceivable that Williams might bave set up acliim and that Brown knowing no better might have taken /or granted that Williams' s statement was true. The statement was Indeed untrue being contradicted by the evidence given before you to-day and inconsistent with the admission made by Williams to the witness Geddet on the Saturday morning. Bearing in mind that this piece of evidence tells against Williams only you will look to the rest of the evidence and say whether Brown is equally implicated or not. The jury then retired, and after * short deliberation, returned a verdfet of {1 Guilty" against Williams, and found Brown " Not Guilty."

The prisoners were again placer] on their trial for stealing, on tlie same day and from the tame place, a cow, the property of Mr. William Potttr, of Epsom. The same jury wa* re-sworn. The evidence produceJ wm neceisarily similar to that given in the other two cases. The constables found the cost killed, and hanging up in the sl-m;hter house, the hide wi>h W.P. branded on it lying beneath the de»d beast. The hide was identified by W. Anderson, stockkf eper, who stated that he had never delivered the cow to the prisoneis ; that he had a gen> ral order from Mr. Potter not to deliver any c-ittle without the owner's directions; that he h«d never leceived such, directions from Mi. Potter for the delivery of th.s cow, and that it was taken without his knowledge. He identified the hide by the brand and the color o f i . Mr. Potter sta'ed he had made an agreement with Wil'iams two or three monthi ago to let him have his pick of the cat'le oa the run at t ceitain price, but prisoner had never come to him for an o der for their I delivery ; the plan he adopted on the sale of cat le | was to send an order with the buyer to his stockkeeper to assist in the selection of the cattle, and then to drive them down into his paddock at Epsom, where they were delivered as soon as the money wa« ! paid ; no cattle had been driven down or del vered to Williams or the other prisoner in this manner, nor had they paid for any ; Williams had called and told Mr. Potter that if the cow was his he would pay him for it, but that was not until after the cow was detected by the policr. The jury wai again addrassed by the At f orney-Ge« neral and Mr. Bartley, the latter gentleman arguing for the prisoners that they might have taken the cattle under the assurance of the bargain that had been made. between Mr. Potter and Williams. The Chief Justice said, in summing up, — It is admitted that the cow killed by the prisoners was one of Mr. Potter's Cows. The only difficulty aries out of the contract mide between the prosecutor and the prisoner Wil'iams, between 2 and 3 months be r ore the time at which the cow was taken, but which, Mr. Potter says, had never been acted upon by the prisoner in the interval. The Coief Justice theu referred t; the two statements made by the prisoner Williams himself on thii subject : ihe first to the policeman Nicholas Smith and, 2ndly, the remarkable words to which Mr. PjUer ■wears, •If it was your cow, I will pay you for it.' The contract wag to sell cattle to Williams : Williams to pick them, but not to take them except through Anderson. Now, if he did take them as under a right of purchase— even though he acted wrongfully in no waiting for Andersons au'ho.ity ; and so violated the terms of the contract — ht cannot be convicted of larceny. If there leally existed at the time of taking the cow an honest intention to pay for it, Williams might he liable to an action, but there would be no felony. On the other hand the cow might be taken with a felonious and fraudulent intent to deprive the owner both of the cow and of the price of it, but on the chance and with the purpose of falling back upon the contract, if the taking weie discovered. Or the recurrence to th« contract might be an afterthought. It is for you to say whether, upon the whole evidence, it can reasonably be believed tli'it the cow was honestly taken under the contract, or whether the contract was meiely used as a colour and cloak lor a felonious purpos*. The Jury returned a verUiot of "Guilty" against both the prisoners. The Court adjourned until Tuesday, at ten o'clock.

Tuesday, Skptimber 4. Julia Carltnd was placed at the bur, charged with having stolen an Accordion, the property of Mr. Laughlan O'Brien, from Mr. Conry's office, on the lit of June last.— Verdict, •• Not Guilty." William Telfour was charged with stealing a cliequs on the Auckland Branch of the Union Bank of Australia, of the value of £9 9»., from ihe Greyhound Inn, Queen-street, on the 23rd July last. — Verdict, •• Not Guilty.

Wednesday, Septkmber 5. The Chief Justice attended this morning to pan tentence on the convicted prisoners. Thomas Bourne wai sentenced to twelve monthi,

impriionment in Auckland Gaol, and to be kept to hard labmir. Edward Williams and John Henry Brown f on the conviction for stealing two cows from A. Geddei, were each sentenced to be transported for the term of fifteen years; on the convicfion for stealing a cow from W. Potter, they were each sentenced to be transpoi ced fur ten years, to be computed from the expiration of tbe previous sentence. Edward Williams, on the conviction for stealing an ox belonging to G. O Ormlby, was leutenced to be transported for the term of ten y*an».