SUPREME COURT. Auckland, June 1, 1850.

New Zealander, Volume 5, Issue 432, 5 June 1850, Page 3

SUPREME COURT. Auckland, June 1, 1850.

The Fc-sion of this Court, for the despatch of business in criminal cases was held on Satuidoy the Ist instant. The following gentlemen were sworn an Grand Juror s: — W. S. Grahame, Esq , Foicman ; Samuel A Bell, William Brown, David Burn, J". A. Gilfillan, Joseph Hargreave^, Lachlnu M'Lachlan,oAlexander Kennedy, Edward Mayne, Major Henry Matsou, Thomas Lewis^ John Woodliousc, Sampson Kempthorne, Matthew Carter, M.D., John Salmon, «and George M. Mitford, E-qnircs. The Grand Jury hating been sworn, His Honor the Chief Justice proceeded to deliver iho following Charge :—: — Mu. Foreman, and Gkntlfmbn ok tub Grand Jury:— l obterve that one of the prisoners on the Calendar is charged with having obtained goo 's nnd money l)y false pretences. It may be proper for me briefly to remind yon of the characteiiutirs of this of. fence, as some misconception hat occabinnally arisen on tin's subject. In the first place, the pretence must be falsa and must be fraudulent. When the fnliity of the representation is proved, the facti of that falsify, together with the other circumstances in evidence, will generally make the fmudulent purpose a matter of inevitable inference. As to the pretence itst If. I' must be an allegation or repiesentntion of something as an existing matter of fact. A mere promise to do some* thing at a future time, as for example to pay ior the goods, is not within the Statute. The pretence may he made by words only, or by nets without any words, or by a combination of acts and won's. That is to say, it may be made in any of tlione wnyi in which one nmn can convey to tho mind of another a belief that u particular state of facts is actuiilly existing. In cases where words we used, it may happen that the greater portion of the statement mnde in literally true, and, further, that the part which departs from the tiuth may, if looked at by itself, be. immaterial and such as would have no tendency to piocuie credit from any nmn; — yet, the whole statement, when taken in combination with existing circumstances, known to the person making the representation, may uinouuc to a false and fraudulent pretence. Next, it in essential that tho gooils shall have been obtained by reason of the false pretence: that is to say, th'it the prosecutor shall have parted with the goods because he believed that which was falsely pretended to be a truth, so mut'h so, that unless he had believed it to be a truth, he would not have parted with them at all. Yet tins is not to be so understood as though a prosecutor must necessarily act simply and at once upon the icpresentation made to him. In order io secure to himself the protection of the ciiminal law, it is not necessary that the prosecutor should cease to exercise care and vigilance. He is not forbidden to inquire about the matter which is rcptesen'ed to him if it appear* in any way doubtful. But if he uct wholly and solely on (he. result of bis inquiiy and not at all on the faith of the representation — il he part with his goods solely on the strength of wh ,t he believes himself to have aoccrtaincd — il he trusts himiell altogether and the piisotier not at all— of course )v rannot afterwards be allowed to come into a Court of Justice and say that he lost bis property by reason of thu pretences of the prisoner, which pictenres he did not in fact trust to. But if hu take the result of Ins inquiries not in lieu of the prisoner's representations, but only as an addition and confirmation thereto, still resting substantially upon tho»>e representations, the rase is within the Matnie. If therefore it shall appear that the prosecutor, in either of these casei, made inquiry before be parted with hii property, it will be pioper to consider how far the pronecutor, when he alter* aids parted theiewilh, was influenced by a confidence in the result of his own inquiuei, and how far by the statement* made to him by the pruonei. The following Jury was then sworn— (with the exception of Mr. Makepeace who us a *' Separatist" mude the icquircd Decimation) :— Mesrre. Joseph McCanu, George Lilly, David Lundon, Jssac McEuen, Joseph Lowe, Daniel Luck, wood, Thomas McConndl, John Mukcpcacc, Daniel Lorrigan, William Lovell, Dennis McCarthy, Robert McDowell. William Winter, lute master of the. schooner Eagle, was given in charge for bavin/,', on the sth of 'Maich last, wickedly and feioniotibly stabbed and wound Alexander White, an able bodied seaman, with intent to do him come grievous bodily harm. The Attorney General having buefly stated the case, Alex. White deposed as follows :— on board the Eat>lr, on the /sth oi March, M.s. Winter (the prisoner's wi c) ramo to the top of the companion in gicat iigitatton ; she then came forwaid to the main deck, and Htood close beside me, saying she was alraid the captain would strike her when he came on deck. 1 told her she need not be afraid of tli.it, as no one on board would Kee hrr ill used. The supercargo then came on deck, followed by thr prisoner, who had his shirt off, and a good deal of blood about hm face. The supercargo's face also wai bloody. Tho captain wanted the su ercargo to fight him, but ho would not. He (i he prisoner) afterwards challenged me, or any one on board the ship, he did not care who it wus, to fight him. I told him I did not think he was any great hand t<> fight any one. This put him very much out ol temper, lie left the quarter-deck, and was going forward to the main deck where his wife was standing. I followed him, and got as Tar as the forepart of the main hatchway, when he turned suddenly round and struck me on the mouth. ] struck him again, nnd knocked bun down, nnd then kicked him while he was down. 1 did this tiecunse he had struck me treacherously, with the intention of knocking me down the hatihway. WliA he got up, I knocked him down a second time. He then went aft, Buying that be would get something that would settle inc. He picked up a winch handle, which was made of iron. Otic ot the men standing near took this from him. Hu then went aft) and someone told me that I better look out for myself. The steward Hung out to me to take care, a? the captain bad got a knife. I immediately ran forward before the galley to get something to defend myself with, and picked up a piece ot wood about three feet long. The captain made a rush at me with the knife, and I hit him on the bead wnh ihe wood. 15nfore 1 had time to repeat the blow, be closed with me, and I found be hail struck me with the kni'c. lie wuh then knocked down by some one behind me, i found the blood running down my leg, und on taking oIF my glnrt, I found that I had bc< n wounded twite. Ibg in

to feel very sick. I was cariied aft, and laid on the (|U«ripr-(lc(!k. I whs nlrc'wnrd? mkcn on hhnre to tlio Militnry Hospital, ami remained there seven days. The witness was cross-examined at homo Jptiptli by Mr. Whittnkcr, with a view of blinking the credibility of liin tcnlimony by pointing out some tiisricpnucios between his present statements nnd his dqmvitiono at the Miicigtrute's Court ; and also of cstublihhmg a case of mutinous conduct on his purt. Henry Gill, cook nnd steward of the Eagle at the date of the orcurrCnce, corroborated the statement of the previous witness, and strengthened the evidence of the outrageouily violent conduct of the prisoner. Henry Walsh Malion, examined. Ib n Surgeon in the Royal Navy— at present attached to the New Zetland Penciblcs. On the sth of Mureh went on bo.ud the liayle to see White. Found him in a vet y weak state from loss of blocd. He hud two wounds on the cheat. One on the sternum or breast bone, the other between the fourth anil fifth ribs on the right side. The lint wound was mncrfirial, having been stopped by the right bone. The second went about two nnd h half inches obliquely upwards nnd outwards. It entered the cavity of the chest, and, at the time, I considered it a very dangerous wound. White's state wai ■0 weakly that I went myscll in the boat will) him, intending to convey him to the Colonial Hospital, but ho became so faint that I was induced to take him to the nearest II i9|iitul, which was ihe Mili ury. The knife now produced (a lurge carving knife) would, in my judgment, have produced such wounds as I saw on White. Cross-examined : The captiiin required some attention also. He had some smait cuitusionfc on the fuce, und a good clc.il of blood about him. No witnesses were called for the defence. The Attorney General briefly but lucidly n capitulated the evidence. Mr. Whittiiker mmle an ingonioUß sjieccli on behalf of the piißoner, urging that the, witnesses (White and Gill) being themselves jarlies concerned were likely, although without any intention of committing actual jierjuiy, yet to give a colouring to the fucti, so as to make the case as favourable as they could to themselves. He also argued that the conduct of White was mutinous, and th.it it is essential to maintain the authority of masters of vimsels, to whom so much is contided. The Chief Jmtice briefly summed up to the Jury. There could be no doubt that the prisoner did cut and wound White, and do it uulawlully. No blows or violence could justify the use of u cirving knife or any other deadly weapon. The cabe however, would tiKn mainly on the question ol what was the prisoner's intent; and that was a point the dod-uon of which belonged so entirely to the Jury, that his Honor exposed reluctance to suy anything that could influence their tnit.ds as to its doteiminallon. The Ju--y found the pi lsoner guilty of a " Common Assault." , Augustine McSwcenci/ pleaded guilty to two indictments /or obtaining goods under false pretences. One was on the prosecution of Mis. Levy of the Victoria Hotel, the other on the prosecution of Mr. W. I'osseniskie. The Couit wns then adjourned till Monday morning, when the prisoners were brought up to receive their sentences, deliver* d by the Chii:f Justice;, which were as follows : —

Tun Qubkn v. William Winter. William Winter, you have been indicted for cutting and wounding Alexander White, with intent to do him Home grievous bodily harm. The Jury have acquitted of the felonious intent, but have found you guilty of the assault. That assault was one of more than ordinary criminality ; two wounds were inflicted upon the breast of the prosecutor, and those wounds were inflicted with a knile. It is true that the cvi« t'ence has sbpwn that the assuult by you commuted wai preceded by cirrums'nnces of great provocation : yet, at the same time, it has np|icjred that the very provocation you experienced was connected in its origin with violence and extreme misconduct on your purt. After making the I<ir«eBt allowance for all those circumstance*, it is Mill manifest that such piovocation from it seaman, os was given in your cage could not justify a muster of « vchscl in acting as you did. Jt i« needful tliut it be undti. stood, t hut no irritating words from a seaman, or even blows and personal violence (if unattended with danger ol lile) can justify Ihe muster in resulting to the use ol a knife, or of any dangerous and deudly weapon. The sentence of the Couit isthatjou, William Winter, be linpiisoncd at the common gaol of Auckland lot the term of etchtuon calendar months and that you be kept to hnrd labour.

Tim: Qukkn v. AuousriNU McSwkbnky. Augustine McSwconey, you have been twice indicted for having obtained goods under fitlsd pretence 1 ); iinrf to both indictments you have pleadid guilty. Had you done othcrwi-e and ben tried in the ordinary courne by a Jury, I hhould have thought it nccuHcary, having regard to the repetition of the offence, to aw.nd to you the more severe mode of (lie two puuihhinuits winch the law preset ibrs. The open confession of \our guilt made by )ou in this comt has induced me to«ct otherwise. You will receive the lighter punishment only : and it will be well for you if the bettir feelings which li»Te moved you now to a conlession ol your cumo shall iicquiie such htrrnglli hh lo save you fnun a rtourrente to your eril courses. '1 lie m uicnce of the Court is that, in respoi t of the fnlse| rctenccH by which you obtnined goods of Win. Poßsenihlue, you be imprisoned in the common q 101 of Auckland for the term of twelve calendar months und bu kept to hard labour And thnt in respect of the false pretences by which you obtained (roods of Solomon 11. Lt'vy, you be iinpiisoned in the same place for twelve calendar months and be kept to hard labour. The s.-cond term of twelve months to commence from tho expiration of the former trrm.