SUPREME COURT.

New Zealand Times, Volume XXX, Issue 4537, 5 October 1875, Page 3

SUPREME COURT.

CRIMINAL SITTINGS. Monday, October 4. (Before his Honor the Chief Justice and Juries of Twelve.) The Court sat at 10 a.m. Mr. Izard appeared to conduct the prosecutions on behalf of the Crown. GRAND JURY. The following persons were empannelled as a Grand Jury :—Messrs. Buchanan (foreman), Watt, Toomath, Rowden, Levy, McDowell, J. B. Nathan, N. Merchant, R. Burrett, Ladd, Duncan, Meek, Mclntyre, E. W. Mills, Jas. Hall, E. T. Gillon, J. Plimmer, Toxward, P. Laing, W. H. Levin, G. Thomas, T. McKenzie, and J. Paul. HIS honor’s charge. His Honor, in charging the Jury, said: Gentlemen of the Grand Jury,—Bills of indictment will probably be presented to you in eight cases. I propose to address observations to you on five only of these—one for manslaughter, one for perjury, two for obtaining money under false pretences, one for stealing in a dwelling-house. The three remaining cases do not present any points of difficulty, but are of an ordinary character, and the experience you have had in dealing with such charges will enable you without assistance from me to dispose of the indictments in those cases. As to the charge of stealing in a dwel-ling-house, you will probably have before you direct evidence that the property was taken away from the owner without his consent or knowledge, and in a dwelling-house, and that the property so taken was found shortly afterwards in the possession of the person charged. I have to remind you that upon such proof the general rule will attach that under such circumstances it is incumbent op the person found in possession of the property to prove that he came honestly by it, otherwise the presumption is that he obtained it feloniously. In the present case, therefore, upon proof of the abstraction of the property and the possession by the person charged, there will be sufficient ground for finding a true bill. There are two cases in the calendarof persons charged with obtaining money by false pretences. Theseoases differ from those usually presented. In the one the case alleged appears to be that the person charged, or someone on his behalf, had delivered a box or case, containing certain articles, on board one of the steamers belonging to the New Zealand Steam Shipping Company, to be carried to Napier or Tauranga, and that that box or case having been mislaid while in the charge of the officers of the company, the prisoner claimed compensation for the loss, and thereupon made representations to the company as to the contents of the box which had been delivered to the company, and that upon the faith of the truth of these representations the company settled his claim by the payment of a sum of £6O ; but that subsequently the box was found, and that when found it did not contain the articles which the prisoner had stated. The only principles of law which I need remind you of are, that in order to support a charge of false pretences there must be evidence of a knowingly false statement of a supposed bygone or existing fact, made with intent to defraud, and an obtaining of the money by means of that false pretence. It is sometimes said that the representation must be of an existing fact; that is not strictly accurate. It is a false pretence if the false representation is made of the past as well as the present, but it is not if made of something in the future. In the present case it is probable that the statement proved will be rather of something past than present—not that the box does contain certain articles, but that it did contain them when delivered to the company. Such a representation would, if false, amount to a false pretence. With regard to the other charge of false pretences, evidence will probably be presented to you of the prisoner having represented that ho was the owner of certain land, that he made that representation with intent to obtain a loan of money on the mortgage of that land, and that he did obtain the loan and execute the mortgage ; upon proof that the representation was untrue to his knowledge, that will amount to a false pretence—the obtaining a loan of money is in fact obtaining the money, and the pretence is of an existing fact. The charge of

manslaughter is made against the driver of a stage-coach. On this I have to observe that anyone who undertakes to drive a stage-coach must have competent skill, and while driving must exercise reasonable care and caution, and if by furious driving oi the want of reasonable care and caution on the part of the driver the horses are so driven as that the coach is overturned, and any passenger killed, the driver is guilty of manslaughter. If there is no furious driving and no want of care, caution, and skill, but the accident happens from the sudden and uncontrolable starting or shying of the horses, the driver is uot responsible. I need scarcely observe that drunkenness on the part of the driver would certainly be neither a palliation nor excuse, but would rather intensify his fault. I cannot refrain from reprobating the foolish and sordid conduct of those persons who, travelling by stage coaches, invite and entice the drivers to partake of intoxicating drinks. Nor can I refrain from expressing a hope that such conduct will be discountenanced by others, and if necessary openly and boldly rebuked. In many parts of the colony where from the nature of the country the roads are so narrow as to leave but a few inches between safety and destruction, it must require that the driver should not only have competent skill, but that ho should he in a condition to exercise it, and with care and caution. The last case that I have to address you upon is a charge of perjury made against a girl of fourteen years of age, who, at the last sittings of this Court, gave evidence against one Cameron, on an indictment for rape alleged to have been committed upon her by him. Evidence will, no doubt, he adduced before you of the trial of Cameron, and of the evidence given by the girl. It appears that she swore at the trial that the rape was committed upon her, the man being drunk, between five and half-past six, on Friday, the 4th of June last, and that immediately after the outrage, she complained to the man’s wife. It is also alleged that in the course of her evidence she swore that no person had previously to the prisoner had connection with her. Now all these matters were no doubt material to the inquiry, and if the person charged swore falsely, she committed the crime of perjury. The case is one of the gravest importance. I am uot aware of any similar case having happened in this country; such cases are extremely rare even in the populous country from which we come. For though perjury in civil actions is not unfrequently found, it is very rax-e in criminal prosecutions, notwithstanding that the inducement on the part of convicted prisoners to make such charges is so gx-eat. TIXDE BILLS. The Grand Jury found true hills against the following pifsoners :—David Pickley, Chaxdes Scott, George Moffitt, Charles Nelson, Thomas Roche, Akuhata, and Eliza Smith. The Jury threw out the hill filed against H. W. Campbell. BURGLARY. David Pickley, charged with having on the 24th September entered the dwellinghouse of William HilUer, of Taranaki-street, in the city of Wellington, with intent to steal, pleaded guilty, and was remanded for sentence. STEALING FROM A DWELLING. Charles Scott was charged with having on the 2Cth August stolen fx-onx the dwellinghouse of Samuel Stacey Downes, of Wellington, a sum of £2l 10s., the property of John Ball ; on a second count he was charged with having feloniously received the said sum of £2l 10s. Mi'. Cox-dan Allan appeared for the defence. Jury.—Messrs. S. Lancaster (foreman), Geo. Judd, Andrew Orr, W. Mason, E- Linn, Henry Jones, Charles Ramsden, John Hadyn, H. F. Smith, Charles Stutfield, James Sloan, and Ex-aUcis Levaixcke. Prosecutor and James McGrath gave evidence ; the one proving the loss of the money, and identifying as his property a £lO note bearing the number 030,226, which had been changed by McGrath for prisoner. Inspector Atchison also gave evidence respecting the laying of the information, arrest of prisoner, &c. At the conclusion of the evidence for the prosecution, Mr. Allan submitted that there had been no stealing in a dwellinghouse—first, because it had been proved Mr. Downes did not sleep in the house ; aud secondly, because the money had been taken from a box in prosecutor’s room, and therefore under the care of the prosecutor - , and not under the care of the house. He quoted authorities in support of his view. Mr. Izard having been heard contra, His Honor overruled the objections. Mr. Allan then addressed the jury for the defence, and submitted that there was no evidence that prisoner had taken the money ; no evidence that he had been even seen on the premises during the day ; and taking these facts into consideration, in conjunction with another important fact, viz., that many persons were passing in and out of the hotel, he contended the jury must acquit the prisoner. His Honor summed up, and said there was much danger in convicting on the second count of the indictment, for it was almost absolutely necessary in sxxstaining such a charge to show that some other person had stolen the money, because if that were not shown, it was difficult to convict a man of having received the stolen property. Xu reference to the first count, his Honor explained the principle of the law bearing upon the subject, and then proceeded to review the facts, pointing out that if a person in the position of prisoner were found in possession of a stolen note for so large an amount ten or fourteen days after it was lost, aud being unable to give a satisfactory account of how he came by it, the presumption was that he had stolen it. After a short consultation, the jury convicted prisoner, and he was remanded for sentence. HORSE STEALING. George Moffitt was charged with having, on the 29th July last, stolen a gelding, the property of. William Prouse, of Waitemata. Jury.—Messrs. Andrew Orr (foreman), James Sloan, Jonathan Burton, John Evans, Samuel Death, W. F. Mason, - - Heybittle, W. Freeman, E. . Whitehead, James Hooper, Charles Hairis, and H. Russell. Mx - . .Allan appeared for prisoner. Prosecuting witness proved that on the day named in the information he rode his horse to the Hutt, and left it in a shed while he went to Wellington. On his return the horse was stolen. Raynor Greeks gave evidence as to the stealing, stating that he had seen prisoner take the horse away from the shed. William Brown’s evidence proved that prisoner called at his house on his way to a place some seventy-seven miles away, where the prisoner said he was going to take the horse ; and Constable Stewart proved the arrest. The jury convicted prisoner, and he was remanded for sentence. FALSE PRETENCES. Thomas Roche pleaded guilty to an information charging him with having obtained £SO from Mr. W. T. L. Travers by means of a false pretence. Prisoner was remanded till next day for sentence, having intimated his intention to make a statement in extenuation of his crime, MANSLAUGHTER. Charles Nelson was charged with having, on the 14th August, 1875, feloniously killed and slain obo Louis Slade, against the peace, &0., &c. Mr. Buckley conducted the defence. Jury.—Messrs. S. Lancaster (foreman), Abraham Phillips, J. P. Allan, H. F. Smith, W. Freeman, John Evans, F. Rank, Andx-ow Orr, Tuck well, H. Jones, F. T. Wilson, and Judd. Both Mr. Izard and Mr. Buckley challenged jurors—in all six. Mr. Izard opened the case. The partioulai-a of this caso have been published twice in our columns, and therefore there is no necessity to repeat the circumstances. The mother of the child in giving evidence before the Court greatly modified previous statements, asserting that although she was frightenc) J “ lu fhG time, she had since the accident wat6iii > ' Rn sho mode in which coachmen drove their HSrses, and had come to the conclusion that at the* timo of the accident the coach was not being driven faster nor more recklessly than usual. After being pressed, she affirmed the truthfulness of former statements, in which she had said the coachman had used language to her amounting to indecent proposals. While admitting that she had

pulled the coat-tails of Mr. Blake induce him to stop on the box -with her, she denied that that had been done in consequence of a fear of improper treatment from the coachman, but attributed her conduct to fear of accident. She alleged further that the footboard gave William Blake gave evidence similar to that he gave at the inquest, and which was published in our issue of 18th,August. He stated amongst other things that just before the accident prisoner was thrashing the horses, and urging them with his voice, causing them to go as fast as they possibly could go. This continued down the hill till the accident occurred. Prisoner was a bit “ fresh,” but witness considered him capable of taking care of the horses. The footboard did not give way. John Prentice, Alexander Tawao, and James MoHattie corroborated this.; Mr. Buckley cross-examined each of the witnesses, and from the replies elicited set up the theory that Blake having got on to the box notwithstanding the expressed disapprobation of prisoner, unequally balanced the coach, which had the effect of rushing the horses down the hill, putting them beyond the control of prisoner, who in his efforts to regain control broke the footboard, and was thus rendered helpless to prevent the accident. The learned counsel contended that prisoner had not been under the influence of liquor, and so far from having failed to take reasonable care and precaution, had from first to last been l more than ordinarily careful. His Honor, in charging the jury, quoted from a text-book to show the law on the subject, and said to escape _ the legal consequences of an accident it was not necessary for a coachman to be a person possessing the greatest skill, or that he should drive at the pace which an old lady might be expected to consider safe, but it was necessary that he should have a tolerably good knowledge of his business, and that he should exercise ordinary caution, care, and prudence. It need scarcely be said that furious driving was not cautious driving, and that for any fatality attending an accident arising from furious driving the driver was amenable to law. In the present case the issue was not merely was the prisoner drunk ? If the jury thought he was drunk, that almost implied that he had been guilty of negligence, but he may have been sober and yet negligent. The great question was, was he negligent and was the accident due to negligence, for even supposing he had been negligent, if the negligence was not the immediate cause of the accident, he was not guilty of the charge laid against him. His Honor then proceeded to analyse the evidence and show where the theory of the prosecution and the theory of the defence respectively were strengthened or weakened, as the case might be, and concluded in the following terms After all there is but one question to bear in mind. With regard to the death there is no doubt, with regard to the actual cause of death there is no doubt, and with regard to the identity of the person lolled with the person whom prisoner is charged with killing there is no doubt; but the only question is whether prisoner at the bar is responsible for that death ? Did he exercise while driving the coach reasonable skill and did he observe ordinary care and caution ? If he did, he is not responsible, but if you are satisfied beyond a doubt that he did not, you have no alternative from finding him guilty. I have only this word of caution to add. No doubt, as Mr. Buckley has said, prisoner at the bar does feel his position acutely—we can easily imagine that he feels the death more acutely than any other person in court. The fact of the death of the child —whether it was attributable to his act or not —and his being charged with having caused the death is quite sufficient to make him feel it acutely, for he appears to be a respectable man, and a man capable of entertaining such feelings ; but this is the caution I have to give you—not to think of this matter when considering what shall be your verdict. Don’t allow such a matter to enter your minds when consulting as to what is your duty. Your duty is clear. If the death was the result of pure unavoidable accident, acquit him. If you find beyond a reasonable doubt that the death of the child was due to the prisoner—due to the want of proper care, caution, and reasonable skill—you must find himguiltj of manslaughter. The rest you must leave to the mercy of the Crown, or those entrusted with the administration of the law. It those into whose hands has fallen the duty of passing sentence upon a convicted person award a punishment which is deemed to bo more than adequate for the punishment of the crime ; if, in a word, the sentence is too severe, the matter can be carried further. But with that you have nothing to do. You have no right to allow feeling to enter into the question. You have only to consider your oaths, and to return a verdict according to the oaths you have taken. After a short retirement, the jury acquitted the prisoner, and The Court then adjourned till 10 a.m. next day. ____________