SUPREME COURT—CRIMINAL SITTINGS.

Southland Times, Volume I, Issue 59, 15 October 1864, Page 2

SUPREME COURT— CRIMINAL SITTINGS.

Friday, 14th October, 1864. (Before His Honor Mr. Justice Chapman, and " Jurieß bf twelve.). The Judge took' his seat on the Bench at tea o'clock precisely. * _ '. . " " <■ ' BMBEZZLEMBNT. Patrick Rough, who . pleaded- " guilty " on Wednesday last to embezzling monies, the property of Her Majesty, while . employed in H. M. Customs, was brought up for sentence. Mr. South said he would call witnesses in support of his previous good character. ~,- Ti .- -■ v Capfcain '. Elles deposed "to the* "good moral character of the prisoner, and -'to his well-known integrity.? - The prisoner made no defence, but relied on the leniency of" the Goiirfci - --"'' - ; - '-£*- Hi 3 Honor said he would deal as leniently M he could witli the 'prisoner, but, ifc* was a crime which could nofc be overlooked, arid the "sentence, while hot being vindictive, must be. exemplary. The sentence ofthe Court was that the prisoner be confined and kept to hard labor,- on the first indictment, for the period of twelve calendar months ; and on the second indictment, for the period of six calendar months • said sentences to be cumulative.- ' ROBBERY, WITH VIOLENCE.. . -., James M.Cann, who pleaded "guilty," on Wednesday, to the above crime, was brought up for sentence. . ' He was sentenced tb four years' penal servitude.-' V'-V* V HORSE-STEALING*-. Lawrence Brown, who also pleaded " guilty," on Wednesday, to the above crime, was brought up for sentence. The judge sentenced the" prisoner to penal servitude for two years.; V '-. COKSPIBACY. r . Morris Salek arid Joseph Silverberg were brought up on a charge. of having falsely and fraudulently conspired to obtain goods from Messrs. Buttne* and Hallenstein and others, and also of executing a fraudulent bill of sale bver.the Royal Hotel. The Crown Prosecutor, along with Mr. South, conducted the prosecution. Mr. Button appeared on behalf of the prisoner Silverberg. Salek was not represented by c&una&l. Mr. Macdonald opened the case for the Crown. Mr. South then called Hermann Buttner, who deposed :— -I know both the accused. t Salek* was last in Invercargill on 18th June last. ■' Till the very day he left, I' had constant communication with him. I had regular dealings with him. •In the beginning of June, from -a report I heard. I went to him ; At this stage, Mr. Button objected to any evidence being given/till .some proof or evidence was adduced of the ; conspiracy between the defendants, r^ y; -: .-. ; >r; V .-.- r ;..- : ?rr aa -, •---•, His Honor concurred that some slight evidence of .„ this nature was 'necessary.,. He ruled that some evidence of a concurrence on 'the part of the accused must be produced. -. r ... y „,_,..*.= Mr. South now called, "AA AA 'AAA. ' ■ • ' . Mr. J. S. Johnstone, Registrar of the Supreme Court, who produced certified copy of biU of sale, duly filed with him as vßegistrar, by ;M.; Salekrto J. Silverberg. .< Tbe. consideratiori, mentioned therein was £600 duly passed between the parties. The deed is dated 6th June, 1864, and was filed on thelsthi ' :■'-.: A. ,r. V-./.OV AAA/AAA A ■ Cross-examinedi-^-jßills , of: sale requiring to»be filed, should be so within thirty- days of the date thereof. • '. y. -:V ..vV'iVV: -..v- ,-j.j-;-?c _AH.i Buttner, recaUed,^ the 6fch, I saw Salek concerning the jeports of his having fraudulently made away with lus property. Mr. Button contended, from cases quoted, that fche evidence of statements made by one party affected only himself, and ,did nofc Inculpate his alleged co-cotispirator. He quoted from Roscoe'* Nisi Priusi and other authorities. '< His Honor , differed, and quoted later cases (Queen's Bench v. Blake), to the effect that the declarations of one party, as much as his- acts, when they bear evidence of a common design, were admissible as against both the accused, although the declarations of one. party jif only affecting himself were not admissible. Mr. Button how contended that the execution of the bill of sale was not of itself evidence of a conspiracy, and objected to Mr. Buttncr's evidence: - _ *"" **" *" *"" — ""?.s°*"l His Honor concurred that the deed of sale was not evidence of a conspiracy, as it of itself might have .been' perfectly Asperse, an irinoce'ntfaefc. H. Buttner, further-examined, deposed : I had dealings with Silverberg and with - Salek independent of each other. - J Mr. Button objected, ancl held such evidence was inadmissible as not connected with the present case; ' His Honor ruled that evidence directly bearing pn the conspiracy must be adduced. Very- slight evidence would be admitted. . ~ Mr. Buttner further deposed — I saw Salek himself when he came back from Melbourne. • His Honor now suggested thafc some evidence should bo produced of fche fraudulent' character of the bill of sale. Mr. Buttner deposed — I was . perfectly convinced thafc Silverberg was nofc in a position to?pay such a sura as £600, mentioned in the bill, of sale as having been paid* - Silverberg , could npt, a few weeks before, pay us £10 jwhich .ho .owed our firm. . In the bill of sale I- find the general stock in trade and goodwill of the ..Royal Hotel made over. Shortly, * afterward? t Mendoza, was "selling, for. Silverberg, goods afc; .the Royal Hotel which had bwm^olj^pm.'uf,- -Jfow^weie »o$

included "in the bill of sale, and were deliverei after the date of said deed. \V' V Mr. Button objected to. this evidence as no being proof of Silverberg being a party to : •" fraudulent act, the bill of sale not being yet beinj made out a fraudulent deed; .... ff His Honor considered "* the' evidence gave i <T coloring of fraud. The defendants were nov found to'be working together, and ruled* the cvi "dence as admissible. . ,'V VV Mr.Jßuttrier further deposed—Spine goods wen 'delivered oh the 13th Juno.; These goods wen advertised for sale under the bill, of sale. *Th< sale was commenced— -I thirik oh tlie 23rd June *I am nofc positive as to the date. I'was nofc there I senfc Mr. Bariks/bur clerk.' He will swear tc these goods being sold. * ' ( \ = S.ome disoussion now took place as to the stocl in trade, which, under the bill of sale, Silverber| got a right'to after the execution ofthe deed, anc His Honor believed there was sufficient evidence ' contained in the: terms ofthe said bill of sale tc ■warrant the case being gone on with. Tlie deed, i-helsaidj had a *-'* 9iriack'' '. of fraud about it;'Mr. Button having asked if there was sufficient evidence adduced; of fraud to allow; the acts and .declarations of the conspirators to be taken .seperately, His Honor ruled that there was. Mr. JJutton. stated, that if.thebill of sale bore evidence '• bf fraud,' on the face of ifc, it was nbt the fault 10l the parties concerned, but of the solicitor who drew it up. The deed was- drawn out in usual form by the solicitor. 1 "' Mr. Buttner further deposed— The jgoods got were worth about £200, nofc less. I mentioned to Salek the report; current about the bill ot sale. I think I spoke to him prior to the Gth. He denied ifc in toto. He .was quite indignant; afc being charged with doing away with his property in any shape or form, arid called his God to witness that the charge was false ; that he intended remaining here, and that he was doing well. I asked him 5 he had made. over a bill of sale to Mendoza, and he called his God to witness that he had not — nor to any one else. He. mentioned that Mendoza was his particular friend, who . -would, if he were ever in any difficulty, assist him. Tasked him if he had entered into any arrangements with -Mendoza, and he said he had not. Salek bought 500 very superior Havana cigars, worth £25 per 1000. These were sent to the Royal Hotel. I saw him almost every day between the 6th and 18th June. The last time I saw him was on the 18th June. On that day he made the same statements as before — that, he was not going away. He then denied the bill bf sale being executed, and was very indignant that I should : ask so frequently about it. The goods sold to him were our own property. He said Henderson, Bonar, and Co. had circulated a false report about him, in consequence of his refusing to deal with .them. Cross-examined.— The £10 due tous by Silberberg was sued for in Qudenstown. Hallenstein, my partner, sued him. Our books showed that he was owing us thafc sum. I know he could riot pay, as we did not; get the money. I don't know of my own knowledge of these transactions. The lease of the Royal Hotel was deposited with us on 7th June last as security for bills to the amount of £384 lVs. 4d. The goods then sold to Salek were covered by tliis lease. We also held other security in respect of property in Melbourne. All the goods then delivered were included in these bills. £384 17s. 4d. was all he owed us at that time. Some of these goods were delivered on the 13th. A previous bill of £110, endorsed by Mendoza, was included in the £3£4 ; also another small bill of £60. Besides these sums there was a small open .account of £8. The goods .delivered in June were worth about £200. They were delivered on the 6th, llth, and 13th. At this time the box of jewellery, which was deposited with us in security, was not opened. I did riot know the value of fche jewellery. I did not know the value of the property in Melbourne. I had not had much intercourse with Silberberg. i •*> By Salek. — I remember when you came to Invercargill. I don't know how much money you brought to Invercargill. I don't know how much you gave for the Royal Hotel. You have had money transactions with bur firm. I don't remember the particular transactions. I remember you applying to us for £200 on loan. I don't know if I was present. I cannot recollect. I was averse to lending the money at all. lam not Bureif the interest was to be £20 for two and four months. We aro not in the habit of lending money at all. When we do, we wish to have as much security as possible. I don't know the value of the jewellery deposited with us. I have written to Melbourne and I find the property there is worth little or nothing. The lease of the Royal Hotel is worth very little. It was put up for "sale by us, and we bought it for £71. There was a sale of the furniture in the hotel at the time - I did not. think there was any legitimate bid for the lease except our own. We were obliged to buy tho lease in. lam not aware if there is any valuation at the end of the lease mentioned in the lease. I don't know what the deficiency would be of your debt after deducting the value of the securities. . The £71 paid for the lease is placed to your credit. Walter Scott Reid, examined by Mr. Macdonald, deposed — I was in the month of June managing clerk to Mr. Button. I was attesting witness to the bill of sale produced. I saw Salek sign it on the day it bears date. Silberberg, I think, was not present. . No consideration passed at the time. I received instructions regarding the bill of sale about the 28th May from Salek in the presence of Silberberg. I did not see the consideration pass at any future time. Cross-examined.— lfc is not usual for considerations to pass afc the time of the execution of such deeds. lam a solicitor of the Supreme Court of Tasmania. W. D. Banks deposed. — I am book-keeper to Messrs. Buttrier and Hallenstein. I know Salek and Silberberg. Salek has dealt with our firm for goods and cash. The books produced show that the transactions in question commenced in January. Mr. Button here gave notice that he did not intend to produce evidence to rebut that given by Mr. Buttner on thiß point. His Honor -thought it unnecessary, and said it woidd be a mere waste of time to dwell longer on it. He also advised that the evidence should be kept more closely to connect Silberberg with Salek. ..,.. . 7 Mr. Banks further deposed.— About the beginning of June, payment was asked of Salek of the £B. on an open account. He said he could not meet it. He could not pay the insurance on the hotel. We paid it for him. Silberberg, when I went to the hotel tb ,see ; Salek, -asked what my business was. He spoke in such a rhanner as convinced me that spealdngrto him was the same as speaking to Saiek. T said T wished to see Salek. I last, saw Salek on the 18th. y After that date, I Baw an advertisement of a sale of the good-will, stock-in-trade, &fe., of the Royal Hotel, under a bill of sale. In consequence of tliis? advertisement, I went on the day of sale to the. place. Mendoza, an auctioneer of this town, was selling. I asked him if he* was selling urider : a bill of sale. -"Silberberg was ;there at thertime. air. Mendoza said he was selling -under .a bill of sale, and I pointed out some goods which. „ were not included r in ; it^. r Silverberg ' said c to 4 w Mendoza, *' Never mind : -go on, go : on." Mendoza did go on. Some jams which we had sold .to . Salek were im : mediately put up for salef *I thensaid "these goods were not in the place at the dato~bf tbe bill ! of sale, and are not included in- it." r Silberberg j again said, '* never mind ; go Jon," and Mendoza 1 prodded. Shortly afterwards, the police came i and^took possession ofdhe place, and stopped the j sale. Sometime in August another auction sale * was advertised by. Mr. yjMendoza. afc the Royal < Hotel. It was a sale of furniture. I : went to the sale. Sdberberg used me Very roughly. I tried to { prevent the furniture being taken out of the place, t He used: all violbrico to ' prevent ■my interference c aving any. effect in detaining the, goods in tlie c place. "Silberberg talked; as. if ho had advanced ; thg money on the place; and sofc up.a ;.,' claim to ifc, c and -talked' as 1 ha-viiig lost- a ■ grbatrdcal by "fcho transaction; In -company- with* ahcoiisfcablby I j took a list of the goods.on the ,3th, July, :; (Read, c list to 'tli"o Court!) I hnvb'soo'u Salek, sinco. his :i: return ou thb 3id^cct.of.tlio ; pyos^ jo ivißhcdiU)?inakb ibinb i ;u\nuigei)iO)it,^ af.ct.ifl' A told' ;j; him that it waa »ow ; in tho bauds pf thb Crown, j a

.i „•„., ,-•»- -— ,^.. „,_^___J 1 1 .- ... 1 Mr. Button objected ,fco- fcbis, evidence as mad : missible, not bearing on any common design, fc His Honor concurred that it was irrelevant.' i Cross-examined..— Salek said ■ Silberberg wa< j willing; to, take liis, .promise for the money, anc offered to settle with liis creditors. Mr. " Weldor i liad put a cbnsfcable iirthe hotel ori the day of tiu r last sale. - None of the goods then sold were ours • There was a, proposition made. on. condition, thai all the goods were to be sold, arid to await the > result of the trial.' , : All ifcbe ? goods we claim arc j nowj in j the hands : of , the police, awaiting the > result of the trial. I asked "'Mr.' .Weldon ii j we could sell tlie goods 'urider a distress warrant. We wished to try the question, so thafc an inter- > pleader might be put in. 'His Honor cbrisidered ' those questions iri'ol- :" evant. '; -AA V': A AA -A. ['■■■-■■ ,By Mr. South.—- We .took these proceedings at the request of Mr. Thomson, the landlord of the i hotel; through his agetifc, Mr. Murray. ; By Salek. — I remember calling at , the Royal Hotel, and seeing you. Mrs. -Salek was : present. This was about the - time when you were remanded from theßesidenti Magistrate's Court. You said if you gave up the whole of the property : you did not think the creditors should prosecute. '• I tbld you thafc any proposition in the matter must ; - come through a solicitor. You said ; you had no '_ money to pay. away to lawyers. I said you had : better plead guilty, and in that case the creditors would deal with you as leniently as possible. You said to me you had nothing to do with Mendoza in the matter. I know Robertson, the auctioneer. I was Clerk at one time to him. I remember talking to him. He said he thought he could arrange, between you and your creditors. I, saw the document Mr. Robertson then had in his hands; It set forth that you and Silberherg : agreed to give up possession of the property. I worded the document. I got no instructions about it. Salek and Silberberg would not sign it. They wished the creditors to . sign it first. We had certain collateral security in hand before you got the last goods. You were sued on one ofthe bills. I considered we had nofc sufficient security. We only proceeded on one of the bills. We considered it would have been throwing away money to have takeri action on any more of them. . Francis Bruce deposed — lam employed inthe Bank of New Zealand. I have had dealings with Salek. I knew Silberberg on. the Lakes, in January last. I don't know what his circumstances were then. By Mr. Button. — Silberberg has had money in the bank since then. By Mr. South. — I don't know at what timo. 1 could not say whether it was in April, May, June, or July. By the Court. — The amount was £100, or thereabouts. I don't recollect exactly the amount, j I paid no particular attention to the account. William Geisow, merchant, deposed. — I know defendant Salek. I don't know Silberberg. I have sold Salek goods. I did not get paid for them. Mr. Button said such evidence had no connection with the case. Examination continued. — When Salek returned I saw him one day, and he said, ** Couldn't you speak with Mr. Whitton and Mr. Buttner that the case might drop." I asked him how he expected me to do such a thing, after having swindled me in such a maimer. He said, "We (meaning Sdberberg and liim) wished to give over ail the effects to our creditors. We oniy want sufficient to take us to Melbourne, and that tliere would be 20s. in the pound to every one." His Honor considered tliis evidence entirely foreign to the case. Henry Manders, of Queenstown — I am a mining agent and lately a newspaper proprietor there. I knew Silberberg there. He left about the end of Ajiril. He said to me ho was going to Riverton. I saw him the morning he left. I had some conversation with him. He left some accounts to collect, and some orders to pay. His circumstances were very indifferent on the Lake. He told me had made some money by gambling at that time. When he was leaving I was owing him 16s. on a board account. I paid him 205., and he said he had no money. About a month ago he said he was coming up to pay all his debts and that he had plenty of money. By Mr. Button — I signed a document to the effect that Silberberg had the best restaurant business in Queenstown, and that he had had a considerable amount of money when he left. I signed ifc on the faith of the other signatures. Mine is the Bth on the list. Ifc is a mistake. I was aware that he had no" money at the time. Re-examined — Silberberg asked me to draw out the testimonial. I am sorry now that I did so, and that I ever signed it. It is the first mistake ever I made in my professional career. Joseph Churches, of Queenstown, deposed to holding an overdue acceptance of Silberberg' s. I have seen him in Invercargill. I saw him on tha 20th June last at the Royal Hotel. The amount ofthe bill was £12 10s. He said he could not meet the bill. He gave me his watch and chain in security. I have them on the Lake now. The bill came due in January. On presentation, the j answer of the Bank was " nofc sufficient funds." By Mr. Button.— On the 20fch June, he told me he held a bill of sale. It was a gold watch he gave. Silberberg has been dealing wifch me since the bill fell due, and I have got money on these transactions.Janies Robertson Ren wick, clerk to J. S. Morison, merchant, deposed — I know defendant Salek. He left on the 18fch June last. I saw him on the Bluff Road on that day walking about as if waiting for something. Mr. Button said this evidence had no bearing on a common design. Mr. Macdonald said it would show with what intention the goods had been got. His Honor said there had been plenty of evidence given against Salek already. Mr. Buttner recalled, deposed that when the actions were brought in the Resident Magistrate's Court, he spoke to Salek as he left the Court. Salek called me on one side, and said, " can't you get me out of this scrape in some shape or form ; I know I have done wrong, but I have a wife and family." I replied, " I don't see that anything could be done unless through his solicitor." He said Silberberg had got his claim of £600, and Mr. Mendoza was threatening. He said, " I have been pursuaded to tliis course, and have put my hand to the document, and signed it. I did not know what I was doing, and I was thinking of my wife aud family." This closed the case for the prosecution. Mr. Button "was proceeding to address the jury, when His Honor interrupted him, saying he had some doubts as to its being a ca^e to sendto a jury. The evidence against Silverberg was very slight. It was adduced thafc he had received a bill of sale over fche Royal Hotel, but thafc bill of sale is prima facie no evidence of a fraudulent intent on his parfc. Tho only other, point in tliis view of. the case was whether he ' (Silverberg). was possessed : oi such a sum as £600, the amount of the con- 1 Bideration said to have passed between the de- i fendanta. It has- been attempted- to : be proved i that Silberberg was not able. to meet a bill of £12 c 10s. on the 20th June, biit the simple fact of his ( laving paid this £600 -a .fortnight previously f night sufficiently account for his being short of I noney then. c Mr. -South admitted, that the evidence against ; ■Silberberg .was, weak. : The evidence; of i Churches, of Queenstown^ however, must ~bo r ooked to as important, „in ,; showing that c or a considerable period Silberberg was not o ible to nieet a bill of £12 10s. He .tlmughfc this d eas a circumstance which forced itself irresistibly a »n one's mind. • o His Honor further remarked that he had not k he .*, slightest doubt of the guilt of Salek," arid ' ho o bought no one else could come to any ibther con- •t; lusion. Ho would' allow ithe counsel for the ;1« icforico to address the jury. .:• .■■■:■; V ' y > si Mr. Button now. addressed thei jury on I behalf o f tho' defendant Silborberg, afc considerable length, o His Honorithen'-summbd. up,. arid' advised the h iry,,that,';in a charge of; conspiracy, they must be tl onvincod of more than one party being, concerned ;tl i ii. Of Salek's j guilt he. thought , no one ? could o: ntcrtains any , doubt ;;bufcUfcAvasmofc:sutUou-:iit to : o; rcsumo a couspiraoyy because one? person had j'd oted :jn,*puch -ft jnaririey? wi ' to Jdefiraud othei :♦ ) ''ii.

* There must necessarily be connected a co-co: spirator, and he thought there was no evidence 1 ; implicate Silberberg in this case. There was, 1 ■ , might say, some grounds for tho case being sei I to a jury, but ho woidd leave it to them to decic l it. They could not, from a more suspicion 1 i guilt,, convict; the parties., '.'-.' The bill of salo 1 1 ;thqughfc,_pn»ja facie, an innocent.. document, ati ; thoy , would, require to be satisfied that the coi * sideration said fco have passed between the pai'tie 1 viz. £600, was or was not a "sham." The cv 1 dence of Silberberg's indigeneo has been slight;; an * after recounting seriatim the particulars' elicited, an enumerating the actions of Silberberg, after th execution of the bill of sale, Hia Honor said h connection with the affair was narrowed into tw points, thus : If the consideration passed was v sham, all his subsequent actions must be viewe as unjustifiable, but if on the other hand, the cor sideration passed was genuine, (and tbey wei bound to accept the prima facie evidence, on the head, of the "document itself) then all his (Silver berg's) actions after its execution were perfectl justifiable. If the jury- -were content to disnns . from their minds all presumption of Silverberg' guilt, then the "case against Salek must necessaril fall to the .ground, as, as he had bofore stated, fc constitute a conspiracy, there must be fcwo ormor parties concerned. One person of himself coui nofc conspire, and whatever they might think c Salek's guilt, they must acquit him as well as th other. He then left the case in the hands of th jury. The jury then retired at half-past four o'cloclf and returned after an absence of half an horn with a verdict of " not guilty." Tho Court then adjourned.