DISTRICT COURT.

South Canterbury Times, Issue 2170, 2 March 1880, Page 2

DISTRICT COURT.

CRIMINAL SESSION. Monday, Makcji 1. [Before His Honor Judge Ward and Juries of Twelve.] j.akc icx v. Francis Arthur Sims was charged Avith feloniously stealing, on the 15th day of Nov., 1879, twenty l-chcsts of tea ; on the PJth day of November, one ]--cask of brandy ; and on the 21th day of November, 1879, one case of cigars, the property of the National Bank of Ncav Zealand. Mr It, Stout conducted the prosecution, and Mr Hamersle3 r aud Mr Austin appeared for the accused. Accused pleaded Not Guilty, James Stevens : I am the manager of the National Bank of Ncav Zealand at Timaru. The accused was a general merchant and kept a bonded warehouse and free store in Church street. I obtained the documents produced from him. The Jirst purported to name certain goods held by Sims for the Bank, and the other Avas a receipt for same. Previous to receiving the documents he asked for accommodation on security of the goods mentioned in those papers, and on a second mortgage on the house iu Wai-iti road. He also lodged an order for £GOO with me on Neill aud

Company, Dunedin, and which. I had reason to believe would be paid. I expected the order to be paid in a few days. Document 13 he gave me a day or two afterwards because the order was not pala, and document A was given to me on the 2nd May. It purports to be a receipt for goods iu hand. Accused became insolvent on 10th June 1879, but those goods had not then, I believe, been interfered with. The Bank proved iu the estate. The proof produced is mine. The goods were valued in the proof at £3oo. After deducting the securities and the second mortgage, accused owed £3291 11s 5d to the Bank. Accused arranged to pay 5s iu the £, which Mas accepted. I sum* him after he tiled in reference to the goods. I tokl him in my office that I had instructions to remove these things from his bonded store. He asked me to allon r them to remain and let him purchase them at the price mentioned in my proof of debt. I said I thought it was hardly the correct thing to allow him to have the custody of the goods any further, as the Bank would prefer to have them in their own hands entirely. He pressed the matter, and said it would bo of service to him to allow him to take these things at his price, and that he would pay me 10 per cent interest so long as the goods remained there and he owned them. He also said he would be liable for interfering M'itb these goods without my permission, as he M’as a bonded warehouse keeper. A day or two after I consented to this arrangement on behalf of the Bank. He purchased throe or four parcels from me afterwards, and paid me for those goods. The memos, of goods purchased I received from Mr Sims. All the goods were not in the bonded store. I had information in January that certain goods were missing. I called at Mr Sims’ office, and told him he had removed some of these goods without ray permission. His reason M r as that he considered the Bank had broken faith iu offering his house for sale under the second mortgage. I told him the Bank had offered the house for sale, but after considerable delay, at the request of accused. Ho further said he had only sold as much of the goods as M’ould recoup him for boud rent due by the Bank. He claimed no bond rent nliatever. I said that was no reason for selling the goods even if the Bank owed bond rent. I told him I should pay him any reasonable boud rent that might be due, provided he gave me possession of the goods then in the bond, and paid me for those he had taken away. He declined to do this, as lie said he had been advised to dispute the Bank’s security altogether. I did not authorise accused to clear 2d half-chests of tea, nor did I sell them to him. He was authorised to takeout one quartercask brandy, but not the remainder, nor had he authority to clear the case of cigars. He did not purchase any of them. The account produced of bond rent, £BS 2s 7d, and dated Oct. 31, 1879, M’as not received by mo.

Mi 1 Stout drew attention to this account being dated 187-5, at the time when the Bank had nothing to do with this property. To Mr Hamerslcy: The goods I sold him were paid by cheques, which I held over at his request, the first for G days, and the second for 2G days. I cannot toll the dates on which ho purchased the goods. I did not treat the goods received as a purchase, but as part payment of the overdraft. There is no entry in the ledger of a transaction in May. Accused told me that Mr White had asked him to give the goods to him (Mr White). Accused told me that I should have to fight the ownership of the goods out with the trustee. About £2BO n orth of goods were lofl in the store. I have not applied for these goods to the trustees. I have had some tolerably large transactions with accused in business, and our business has always been conducted fairly. I never offered to settle matters with accused, except as I have stated previously. Ile-cxamincd by Mr Stout: Up to the last interview I had witli accused, lie laid no claim to the goods, nor did he mention anything of the sale of the goods.

Andrew Hart. Landing Waiter at tlio Customs, proved that between the loth and 24th Xov. 20 half-chests tea, a quarter eask brandy, and 1 case cigars were taken nut of bond by Sims. J. H. Sutter, inercbant, said lie was was one of tlic two trustees in the estate of Sims. In accordance with the creditors’ instructions lie valued the goods in Sims’ store, but excluded certain articles which Sims said belonged to the National Bank. Geo. Pearson, storeman, proved that the tea was sold by auction, and privately to White, Hutchison, and others. Other evidence as to the sale of’ cigars and brandy to J. Ackerman, hotelkeeper, Pleasant Point, having been given, the case for the prosecution closed and the usual addresses followed. At 7.b p.m. the Foreman of the jury intimated to His Honor that they had not yet agreed, and asked His Honor if he would furnish them with his notes of the .Bank Manager's evidence. His Honor replied that this was unusual, but called the jury in and read the evidence referred to. At 7.;>0 after a brief consultation with His Honor relative to the order given for the goods by Mr Stevens, the Foreman said that they were as far off a verdict as when they came in. He would ask to be allowed to retire for a few minutes, when the might come to a decision. After a short interval they came into Court, and returned a verdict of “Guilty without felonious intent.”

Mr Haraersley asked that a idea of “ Not guilty ” should be recorded. Mr Stout referred Iris Honor to the case of the Queen a - . Mecny, where the Judge rc-dircctcd the jury, and sent them back to consider their rerdict. His Honor could not accept the verdict in that form. He re-directed the jury on certain points, and asked them to reconsider their verdict. At 5.15 pan. the jury returned with a verdict of “Guilty, but with no intent to defraud the Bank. His Honor pointed out that such a finding was similar to the previous one. He again directed them on the question of the intent to defraud, and pointed out that if the jury were of opinion that the accused had ss>ld these goods and detained the money, he was guilty of the charge, and their verdict must be accordingly; if they thought otherwise, they must hud him not guilty, and he was entitled to an acquittal. At 8.25 p.m. the jury returned a verdict of “ Guilty,” with a recommendation to mercy. Mr Stout said in view of the verdict given in the case against Sims, he would simply present the other indictment which had been preferred against him, but would offer no evidence. The accused would therefore be entitled to an acquittal ou that charge.

The indictment having been read, the accused pleaded “ Not Guilty,” aud His Honor ordered the jury to bring in a verdict to that effect. The prisoner Mas remanded for sentence. The Court then adjourned until 11 o’clock this morning. THIS DAY. tiik noxixfi 11av mors. Jeremiah Kelly, Lawrence Towers, Patrick O’Shea, Patrick O’Connor, James Watson, John Deuilicy, Maurice Moynahau, Thomas O’Driscoll, aud Daniel O’Keefe, M’ere charged M’ith unlawfully and riotously assembling in company M’ith divers other evil disposed persons, on Dec. 2(i, and thereby creating a breach of the peace. The accused were further charged M’ith assaulting, Mounding, and cruelly ill-treating one John Reid. Mr Stout for the defence. A difficulty arose in the impanelling of the jury, the CroM-n Prosecutor insisting on knoM’ing on whoso behalf the right of challenge M’as being exercised by the other side, as unless can* M’as taken the panel M’ould lie exhausted, and l\lr Stout retorting that it Mould be time enough to prepare for such a difficulty when it arose; that he only meant to challenge Orangemen, M'ho had no M’ish to act, and those who were known to have expressed opinions on the case before the Court ; and that he had fifteen or sixteen names on the list whom he did not intend to challenge at all.

The folloM’ing jury was then empannellcd :—G. Stumbles (foreman), James McKay, Win. Hodgkinson, John Scott, Win. Collins, George Taylor, James Bad ford, George Bobinson, Joseph Newton, Thomas Parr, George Talbot, and Thomas Amos. The right of challenge M’as freely exercised, fifteen being challenged by the defendants, and three by the Crown Prosecutor. Mr Stout —I wish the Court to take a note of the fact that every Catholic called has been objected to. His Honor—l will take no note of the kind. It has nothing to do with the proceedings. The Crown Prosecutor —For my part I do not know- M’hat the jurymen arc. If Catholics have been objected to it is no fault of mine. Mr Stout —I merely mention the fact. They have been challenged. The Crown Prosecutor then opened the case, briefly narrating the facts of the disturbance.

The following evidence was called:— Peter Pender, Inspector of Police in the Timaru district, stated: I remember Boxing day, Dec. 2(5 last. I had previous intimation that the Orangemen were going to take part in a procession, and that certain men intended preventing them. On that morning, in consequence of what I had heard, I went to O’Driscoll’s. I saw him at the corner of North and Latter streets, and knowing that he had a good deal of influence with the men who intended opposing the procession, I spoke to him. I asked him if it was true they were going to obstruct the Orange procession. He said he believed they were. I said I thought it was a foolish thing to do; that there was no law to prevent processions. Just then I saw four or five men go down Latter street from O’Driscoll’s house. I said to him “ There arc some of the men going now. Could you not prevent them? Mr Stout—l don’t know what that has to do with the case. There is no law compelling G’Driscoll to prevent them even if tlxey were going to break the peace. Inspector Pender —He said : “ I am afraid not.”

Mr Stout objected to the evidence as being irrelevant. The Crown Prosecutor —This connects O’Di’iscoll with the charge. Mr Stout—How docs it connect him ?

Inspector Pender—l said “ Mery well, they will have to take the consequences,” and I went to the police station. The procession was then leaving Bussell square. I remained in North street till I saw the men who went to form the procession pass down. They numbered about 40 or 50 ; a few carried swords, but they had no sashes at this time. I left my men at the police station and proceeded to the Foresters’ Hall with the Police. Magistrate. On arriving there I saw a number of Oddfellows and Foresters formed in line of procession. The Orangemen had fallen in behind, and formed two deep, standing up Barnard street. They had got their yellow sashes on. There was a crowd of 150 men round them at the rear of their line. The men were shouting and rushing towards the Orangemen. I was on horseback, and in com pan}' witli the Besident Magistrate, I got between them. I pressed the crowd back with my horse for some time, spoke to them, aiid told them that they were acting illegal!}' —that there was no law to prevent the procession, and the police}were bound to protect them marching. The first I noticed taking an active part was Denihey. I addressed him personally, and told him he was doing wrong, and would regret it. He and several others replied that they would not allow the Orangemen to march in colors —that it was not allowed in oilier places. Besides Denihey I saw Watson pushing forward. I also saw Connor, but cannot say that he was doing anything. I cannot swear to any of the others. I heard the B.M. address the crowd in similar terms to myself, advising them that they were doing wrong. The constables who had left the station got in between the crowd and procession, and at the same time Inspector Hickson, from Christchurch, with 19 men, arrived, and assisted. They all did their best to keep the crowd away from the Orange part of the procession. The other processionists in advance were not interfered with. Just then about 100 men came from the railway station and joined the others. His Honor—Which others?

Inspector Pender —The party who were opposing the procession. The Oddfellows and Foresters led on in the direction of the new Post-office, and the Orangemen also attempted to move after them. I was at the end of the Orange procession, and I saw the crowd make a rush towards the procession. I rode down followed by the police, and the crowd were forced back again. The Orangemen retired just then into the Foresters Hall, at least the majority of them went in. Immediately after this, the Resident Magistrate read the Riot Act. I called out in a loud voice “ silence” and intimated that the Resident Magistrate was reading out the Riot Act. I also called ou the police to clear the street, and the crowd went back. His Honor —The crowd went back.

Inspector Pcudcr —Yes your Honor

—moved back ; left a passage through the Main street. Two or three of the Orangemen, who had not gone into the hall drew their swords. Mr Beetham and I asked them not to use them and they desisted. After this the Resident Magistrate and I swore in some special constables. We remained a short time, and as nothing was going on we moved away up Barnard street with the intention of drawing the crowd after us. A large number of them followed us up the street. They formed themselves into a procession and went down Barnard street, and North street into the Great South Road when I lost sight them. Cross-examined by the Crown Prosecutor —I saw O'Driscoll in the morning about 50 yards from his hotel, but not afterwards. I think I saw O’Shea, but am not certain. A letter was brought to me which was found on one of the prisoners. It was addressed to “Mr Maurice Moynahan, care of Mr J. Molloy, Waimate.” I heard the mob call out that they would not allow the procession in their colors. That was the principal thing I heard. The Crown Prosecutor Did they say anything else ? Inspector Pender —They said they would not allow them to walk in their colors ; that it was not allowed in other places. Cross-examined by Mr vStout —I was among the ci'owd, and with the procession from the beginning to the end. lam not aware that it is against the law for men to cany firearms. Mr Stout—Then you are not acquainted with Judge Johnstone’s Justice of the Peace. It is against the common laws of England. (Mr Stout quoted the statute of Northampton, prohibiting unusual weapons.) I ask is a sword an unusual weapon. Inspector Pender —Not for Volunteers. (Laughter.) I don’t recollect seeing Foresters or Oddfellows going armed. Although I saw the Orangemen going with swords I did not consider it necessary to interfere with them. I was with the Resident Magistrate, doing what I considered best to preserve the peace. The crowd was in tiie centre of the street, and traffic was suspended for the time. Mr Stout—Do you know the 2(sth subsection of Section 4 of the Canterbury Police Ordinance ? Mr Pender—lt is not in operation in the Borough. I believe there are Borough bye-laws prohibiting the obstruction of the public streets. His Honor—Have there ever been any other processions of this kind with colors V Inspector Pender—Yes. Father Heuebery’s procession. Avery large procession. His Honor—With colors ? Mr Stout objected to the question. His Honor—But I intend to put it. What procession ? Inspector Pender—A temperance procession of Father Heuebery’s. All those who took the pledge marched through the streets in green colors. There was a large number did so. P. Beetham, Resident Magistrate, was called. Mr Stout objected that Mr Beetham was not examined in the Court below, and said it was laid down in the law books as a subject for comment that notice should be given to the defendants when fresh evidence is intended to be called. Mr Beetham said—On the 26th of December I saw a procession of Orangemen being formed, and at the same time a crowd of men came up from the railway station, and placed themselves in Barnard street facing the Foresters’ Hall. Mr Pender was there at that time on horseback. The crowd imme-

dialely began to sbout to the Orangemen to take off their colors. They seemed to become more excited every moment. I saw one man, Moynahan, whom I knew, and I asked him what they wanted, and what they wore going to do ? He said they would not allow the Orangemen to march: “Let them take off their colors.” I said they are not breaking the law by marching with their colors on ; you are breaking the law by preventing them. I pointed out that there were women and children about, and requested them to go away. At that time the men were very excited. They were yelling, screeching, screaming, and altogether very noisy. I addressed one or two other parties in the crowd, but I could not succeed in calming their excitement—they grew worse. Then there was a sudden rush round in the direction of the new Post-otlice, and I got out of the crush as ■well as I could, and went to where Mr Pender was with the police. After this rush round took place, there were several rushes forward, and I saw men. being hustled. There was a general mixing up. I spoke to one or two of the Orangemen, and recommended them to give up their intention to march. An Orangeman represented to

me that they were not breaking the law, and that the}' ought to bo protected. I told him I knew that, but the crowd were too many for us and too excited, and wo wore unable to deal with them. The police were at that time endeavoring to keep the crowd back from the Orangemen, but they (the crowd) kept breaking through in small mobs. There were numerous cries of " tear off their colors ! tear off their colors ! ” I can’t say who made use of the expression, but I hoard it many times. In consequence of what Mr Pender said to mo I road the Plot Act. The Crown Prosecutor—What wore your grounds for reading the liiot Act ? Mr Stout objected to this evidence. His .1 fonor considered it admissablc. Mr lleetham —I thought it was high time for reading the Act. 1 was in terror lest blood should Ik* shed ; that was my reason. I expected it every moment. 1 only observed Moynahan and Towers. I heard Towers shrieking,

jumping - up, and yelling, “ Tear their colors oil'. 1 had seen Muynahan before. He was the only one 1 knew. After the rush I observed some of the Orangemen hustled. I saw one Orangeman and a erowd round him. There were hands on the Orangeman’s shoulder, and shortly afterwards when I looked again his sash was olf lying at his feet. This was before I read the Hint Aet. To Hr Stout—l was not subptened and I did not volunteer my testimony. I should rather not have come forward. I knew on Sunday evening that 1 should be required to give evidence. (Jould not tell how Towers was dressed; but I recollect his face among the crowd. Hr Stout —What sort of voice bad he ? Hr I’ectham A screechy voice. (Laughter). Hr Stout —Was it a thin voice V Hr Ueetham—l really can't describe it. It was a high pitched voice. Hr Stout —When did you see him next V HrlJeetbam—When lie appeared be-; fore the Court. j

Mr Stout —When did you cease to discern the Orange colors P Mr Beetham —The last Orangeman I saw was the one with the scarf at his feet. The Orangemen disappeared into the hall. ' Mr Stout —Did you see any weapons worn by the Orangemen ? Mr Beetham I saw two naked swords. The Crown Prosecutor —Were they drawn before the disturbance ? Mr Beetham—l did not see the swords at all before. At this stage the Court adjourned for half an hour. Mr Stout applied that the accused should be allowed to go at large for their lunch, but His Honor said it would bo provided in the usual way by the gaol authorities. Detective Kirby, Richard Haldane, George Kinder, Edward Smart, George Goodson, John Read, and Hugh Thorncliff were all examined. Several other witnesses for the prosecution had still to be examined when wc went to press. Mr Stout announced that he should call seven or eight witnesses. It is, therefore, unlikely that Ihe case will terminate before a late hour this cvcuing.