SUPREME COURT— CRIMINAL BUSINESS.

Otago Daily Times, Issue 257, 16 October 1862, Page 5

SUPREME COURT— CRIMINAL BUSINESS.

Wednesday, Octob^k 15th. (Before Mr. Justice Gre^on.) | His Honor took his ee»t on the bench precisely at tan o'clock. CHAIIGB OF'PERJURY AT TUAPEKA. James Harris was indicted for having, at Tuapeka, on the 16th April, been guilty of wilful and corrupt perjury. Mr 'Barton and Mr Ward appeared for the defonce. Th^ Crown Prosecutor stated the case, of which the following ar« the shovi facts :•—The prisoner and the pra-ecutor,George Simmons, were formerly in partnership at Richmond, near Melbourne, as owners of a billiard room. The prisoner came to New Zealand and took out a business license on the gold fields; and having returned t> MeiKojrnein December, he proposed toSimsnon.s that ilfere should be another partnership for carrying on the billiard basin ess in New Zealand. The prisoner drew up two copies of an "agreement for partnership," which were signed and exchanged He and the prosecutor bought a table for £50, from Mr Thomas, and each paid £25. The prisoner bought a-tent, for the billiard room, and on producing the bill. Simmons paid half of that amount. Skittles and quoits were purchased in'the same way, and the parties started together from Melbourne with all their apparatus. Here, a drayman named Abel Norton, was hired to convey the table, kc, to Tuapeka for £15, but on the way the dray was upset and the tablo somewhat injured. An IO D was g'ven for the £15, and Norton suing upon that document, the parties appeared before M;ijor Croker at. the l-J-abriel's Police Court, and the prisoner repeatedly stited that he and Simmons were partners. Shice then he had explained th-it he meant there was a partnership in the matter of the cartage only, which (said the Crown' Prosecutor) was a thing nob comprehensible. After awhile the prisoner whhed to dis-! pose of his interest in the concern, but Simmons had j not money enough to buy him out, ami could not give security. The prison* r offered to accept LSO, even in weekly Instalments. Only the name of the prisoner ha 1 at any time appeared over the door of the tent, for he had suggested to Simmons that if it wa*known both wore concerned two license* would be require i — which was not the caso—and that itwould be Letter to u:-:c his name only, his previously obtained lieonse not having expired. Vindirg that he could not sell lii-3 share, the prisoner announced a sale,by auction i of the table, tent, and fittings ; but as Simtio.-is i atfc'ende.l, atid read a protest that he was a partner, no salf was made. The prisoner then made some an- mgoment with Frank Pe'lin?, a waiter, and when Sir. m-ins rehirn^d to the tent, in the afternoon, he I found the door locked. Believing that h<: was justii lied, Simmons cut the canvas at the back, and took from the tout rorae clothes, two bottles of cordial, and half a Ik>x of cigars. Pulling gave him into custody for breaking- au I stealing; and the pri-'oncr swore distinctly, and more than one.?, that the tent and table were hi* solo property, and that nothing like a partnership deed existed. The matristra^, knowing whad had pa^ed in the suit of Norton, remanded Simmons on bail, that he might send f.>r the document siinied by the prison or. and whi'.-li ht3 (rjimrnon.--.) had left with Irs wife in Melbmrne. When the document was received, the magistrate discharged Simmons, and committed the prisoner for perjury. TJ;o frown Prosecutor having closed liis .ctav:mer:t, Mr Barton complained that, some important documents in the ii..uds of the police, and as to which an order w;:s made a lew days ago, were not in Court. Sub-In^jc-ctor Weldon su=d tint he had never been applied to <m the subject, although he had been eoustant'v in Court.

The Judge said tfrt the order was tliat the prisoner's solicitor should have access to. and be allowed to make c>y>;.rs of the documents. If he had not applied for .'i-.rrres*, ho had no ground of complaint. Mr Ward .stated that he had applied at the Police Ofiice, and been told that the doeu»n<Mits would not bo handed to him until lr.; obtained a Judges order. The Judge paid that such an order was not applied for. Tho pimple course thai was open had not been taken, a^d to urge omplaints now was a sheer waste of time.

Mr Barton contended fiat it wjis fsseniial that the jury should know the awkward pssition in which th* prisoner hod boon placed, through the documents not having been produced.

Tlie Judge : Mr .arton, once for all—once for all, I say -if you do not behave i;i a;difrerent manner, if you koop interrupting the Court in this way and. was'.nm- time, 1 will make an order to commit you.

Mr Barton : Very well, your Honor, I must do my duty.

'lhc prosrotor was partially examined, and then— Richard E iwanl L'u;kl, c!ei-k to the magistrate at Tnapoka, vas called. He said tint he clearly remembcrecl the case : Norton v Simmons and Harris. The prisoner then stated on oath, that Simmons wa-i :i partner i:i Die table. The witness produced the depositions taken in the case against ?immuns. when ebnrced by Polling with hou^ebreaking and robbery. i Jort:oiis of tii'; prisoner's .evidenci? were as follow":

—" The biiiiard table and tent were mine, but are now Mr I-Vlli^'s. 1 sijU the piace to him on the i-lth or \'6iAi April, the day for which the public sale was p.alled. I swear that [ have no ynrtacr in the biiiiard table or the place. I never ackuowledircd you as a partner of mine. I positively swear that there is no deed of partnership between yon and me. Yon did not pay one liaif of the amount for that table. I offered you LSO to go away from my place. I-may have told some one that I offered you LSO for yonr share. It may be worth LSO or L()0 lo fret rid of a man." c: I was. called upon toiove evidence in my defence on the summons of P\*ort >n, and I was questioned as to the ownership of the table. I don't think [ was asked whose property it was. I doa't recollect swearing that the billiard tu>le was the jjint property of Simmons and myself: I swore that he was a partner in the transaction as to the cartage. I sweat* that there was no partnership iv the table existing at the tini" of that t-iul. 5'

The pr-'Si'difor was recalled, and he generally corroborated the (ipesing statement. He added that when he was expecting the arriv.il of the partnership deed from Melbourne, the prisoner in the presence of one Fisher, dfli-red him L4O if be would not pro luce the deed in C urb.

[D'.irinf-- the examination in chief, Mr Barton handed in several written objections, more especially against the admission of evidome respecting the ca^e of Norton v Sinmons and Harris, on the gronnd that the summons and the record list of decisions ought to have been produced. J _ I'y air Baiton : In the invoices produced his name did not. occur. The invoices referred to same things bousrht bsfore the agreement, but afterwards brought into t!ie partnership, and to others purchas-d subsequent to the agreement. He would not swear that lie had ever seen .mi invoice in winch his own name was coupled wilh thai of the p isouev. Ho paid his half of everything up to tin tima of leaving Melbourne, but from that time 10 the commencement of t*ie business, the prisoner paid everything except his (Siuimoiis's) pa^a-ire-money by the Aiding?,, towards which !ie paid L2. There was a "'siygrog'" shanf.y attache! to the t>nt, and tiie table was "profitable daring tlie two mw:!is they carded on business. They one day took LIB; but perhaps the average did not rx.ved L3 a day in all. Wit'i his share of the profits lie paid the pris mer the amcunt of liig extra expenditure. There was eich night a division made of (lie moneys received. He swore that the division wa* regularly made, and up to the oth April, ail his share of profit went in repayments. All was then square between them.

Mr Barton, in liis add.iess to the Jury, said that a n.a i might stite upon oath a thing which was false, nii'i not commit perjury; and there was a case in the books, of a man \vlu>, having stated what was absolutely true, was convicted of perjury, because at the tiniM he did not know it to be true. If the prisoner really believed that Simmons was not a partner, bis swearing it was not a committal of perjury, for. which a wiii'ul and corrupt intention .to deceive was necessary. The difficulty io be got over was, that the prisoner was stated to have once sworn that was a partner, and afterwards to have sworn that he was not. The first oath, as explained by the prisoner, was that Simmons was a partner as far ns cartage was concerned. The terms of The agreement were, that each should ''pay an equal share of everything that may be concerned in the business, the whole of the expenses to be paid before any share of p-ofits is divided on one side or the other, as the outlay may stand." After he had paid all the expenses on board the ship, in Dunerlin, and on the road to Tuapeka, it was most natural for the prisoner to conclude that Simmons v. rus not a partner in the table until all the expenses had been repa:d. The Jndre said that the clause was most common in partnership deeds. Mr Bavton submitted that the highest authority in a published work, laid it down that ♦• partnership is not the n.'sult of an agreement to share profits so ! loner as anything remains to be done before .the right to share them accrues." This was the general proposition ; and it was afterwards stated that " the test is,to ascertain from the agreement itself, whether any time is to elapse, or any act remains to be done" before the.,agreement comes in force; because "if there is the parties will not be partners until such time ha 3 elapsed or such act hns been performed." The Judge asked Mr Barton if he could find a ease ii\ which it hud been held—the deed containing1 a provision that profits should not be divided until expenses had been paid—that the parties were not legally partners until such expenses had been paid out of prpfits. ' Mr Barton said that the prisoner had clearly acted under the honafide belief that'until he had been repaid what he had advanced, Simmons was not a partner. 'The ease he should *"submit, was..that landing when they landed, that Simmons could not pay his , share, a new arrangement was claimed by the prisoner and entered into in Danedin.

The Crown Prosecutor pretested against any such unwarranted case being even hinted to the Jury. - Mr Barton said that lie could secure his end by submitting a hypothetical case. The down Prosecutor s»ill objected : and the Judge ruled m support of the objection. Mr Barton was proceeding to comment on the improbability of Simmons being able to contribute money as he said he had done : when ' The Crown Prosecutor objected that the state.menfcs were wholly unwarranted by anything in the evidence.

The Judge-agreed; and Mr Barton abruptly sat down.

In summing up,-his Honor faid that even bad the case taken an ordinary cmrse, he iihould not have been surprised at th- jmy havii g som« little difficulty in understanding it, from the pecuniar nature of the crime charged ; but the cisc had bern rendered much more difficult by the manner in which it had been cmduetxl by the learned counsel for the defence His Honor explained the law of th« case, to the same effect as Mr Barton in bis first two or three propositions ; adding that although the oath of two persons was not necessary to-conviction, some support of the oath of the prosecutor was essential. Suppose the jury thoughr. that thpre was any evidence confirmatory of Hmtnon-;, then let thorn, consider to what conclusion thfy would.have to come before they''could conclude that he was swearing falsely. Tlißy mmt decide that the story he had told -and which seemed to him (the Judge) not to have been shaken in one til lie by a!l the-cross examination . W a3 a tissue of falsehood ; and that an independent witness had lent himself" to bolster up those falsehoods.

The jury having retired, Mr Barton asked his Honor to submit a point to tham, which his Honor thought not necessary; and Mr liar ton then tendered a bill of exceptions, on the ground that the ju'-y should have heen directed to dismiss from their minds all the s fatoine:.fcj of the proceedings b fo;e t!i3 Magistrate in the ense of Norton, v Shnmoivi and Harris.

In a few mmute-i t.lii; jury returned to court, and delivered a verdict of Guilty. Sentence postponed.

Mr Barton cdletl witnesses to character.

Samu.;:! Glover said that lie had known the prisoner eight or nine years, and had always found him an upnght man.

G-.iviu Wardrop had known the prisoner about 11 year.-*. H? had borne a good character during the whole of that time.

Win Hoarn s:d'.l that he had known the prisoner 19 yo:irs.. He had known him to bo a hard-working and in'lmtriuus man, botii ia London and Melbourne and ho h;id a good character in other respects. The Court rose afc 20 minutes to five o'clock.