FRIDAY, MAT 14th.

Southland Times, Issue 1160, 17 May 1869, Page 2

FRIDAY, MAT 14 th.

bugina v. aylmer, sayebs, and m'kenzte. The Court resumed this morning at 20 minutes past 10 o'clock, and immediately proceeded with the conspiracy case, defendents being allowed seats on the floor of the Court as on previous day. Mr Macdonald, continuing the examination of witnesses for the prosecution, called Henry M'Culloch, Resident Magistrate at Invercargill, who, deposed to the authenticity of the deposition of Mr Christopher Basstian at the examination in the inferior Court, when the case was first heard. The depositions were then put in and read. Michael O'Keefe, Sergeant of Police, deposed to having received the box containing the tenders from the Resident Magistrate on the 14th of October last, the box being sealed with the seal of the Court, and the Resident Magistrate retaining possession of the key. He gave the box to Mr Commissioner Weldou. T. K. Weldon, Commissioner of Police, deposed to the box having remained safely in his custody from the time he received it until produced in Court. William Stuart, Registrar of Supreme Court, deposed to having had the box in his possession for the purpose of examining the tenders. He then proceeded to read over the various names and amounts. Clement Morton, recalled, said he saw the tende: a put into the box before it was locked up. Cross-examined by Mr Barton — The Fast Day was a holiday. I was at the Government Offices that day from between 9 and 10 until between 2 and 3 o'clock. Mr Aylmer was not at the offices during that time. Persons had access to the office without my assistance. This concluded the evidence on behalf of the Crown. Mr Harvey and Mr Barton intimated that they did not intend calling witnesses for the defence. Mr Macdcnald, in, addressing the jury for the prosecution, went carefully through the evidence, and pointed out that the tenders had been opened was clear, and that after they had been placed in a box, of which Aylmer had the key. One witness deposed to Aylmer removing the box from the G-oYerament safe to the Club Hotel, and giving it to M'Kenzie. Several witnesses proved he had gone home that evening with Aylmer, and remained all night. The following day, ■ Sayers had tried to procure a schedule of prices, and he and M'Kenzie were closeted in a room the most of the day, and were using writing materials. It had been proved there were 17 tenders received, | laid on tbe Provincial Council table, , and replaced unopened in the box, and \ returned by Aylmer to the safe. Before the Council, M'Kenzie stated he was . interested in a tender put in in the name \ of Hastie, but only 16 had ever been seen that night in the Council Hall, nor , one in the name of Hastie. M'Kenzie - had boasted to many witnesses he had the amounts of moat of the tenders, information which could only be obtained L unlawfully. There was always a diffi. [ culty in proving a charge of this nature, but he could not see how the jury could ; come to any conclusion but that they \ had acted in concert. He presumed the defence submitted for one was to be , iatem penance, and the other imputing blame to the Government for careL lessness and neglect, but neither were of , any avail. Mr Harvey then ably spoke in defence of his client. He did not intend to plead for an acquittal on account of his habits having put him in the place he was, neither on account of the suffering both of body and mind he had endured, nor on behalf of his wife and family, but simply because he could show that the chain of evidence failed to prove anything. He could not deay but that two or three tenders had been opened, but it had been proved that six or seven had been received several days prior to the time for closiug, and these were left loose about the office with the greatest carelessness. M'Kenzie and Aylmer's intimacy was no proof of conspiracy. M'Kenzie's conduct about the betting &c, instead oi showing guilt, he thought proved hk innocence. In his opinion there was no case made out. Mr Barton, in a very lengthy speech on behalf of M'Kenzie, endeavoured to explain away every piece of evidence that the Crown relied upon as conclusive. He thought to imagine that contending contractors were not anxious to get every information, even at the cost of £20 or £30, was nonsense ; indeed out of seventeen, if there were three who would not do so it would be the utmost. (His Honor objected to Buch a statement being made). The want of evidence as to what became of the box after being taken to the Club by Aylmer would make it appear as a wizard's box, as, although the hotel was watched by a number of contractors, it was not seen again till found all right ia the safe at the Government Buildingß. The billy at Mr Aylmer's house, madd so much of by the Crown, was used merely to make some hot grog, and there was nothing wrong about that. His Honor, in summing-up, expressly directed the jury to dismiss from their minds any prejudice in favor of op against the dofeudents, and decide wholly on the evidence before them. He then proceeded to define what constituted conspiracy, and alluding to the difficulty of proof in such cases, pointed out that it was not necessary to prove a specific agreement between the defendents, but simply to consider whether the evidence was such as to leave no reasonable doubt of the existence of one. The iudictment charged them first with conspiring to defraud Messrs Abbott and Packham, aud went on to recite the assumed manner and purpose of the conspiracy, namely, by opening certain tenders, ascertaining the amounts, draft-

ing fresh tenders, :itul placing them in the box, thereby to defraud other tenderers. There were other counts, but the jury were only required to decide on those specifying that the tenders were opened. Those proved to have been opened were three in number, Messrs Shearer's, Roebuck's and Aldriilge's, and although there was a cartam amount of evidence that M'Kenzie did prepare a fresh tender, it was not put in. If that were so far proved it would then be for the jury to consider whether the intention was to put in a lower tender. It was a fair inference if men wilfully and deliberately stooped to do such a dishonorable action that they would not so degrade themselves without the hope of profit. There was indeed only this solitary way of accounting for it. His Honor then reviewed the evidence of the principal witnesses, taking occasion to remark on the suggestion by defendant's counsel — " that it was wrong for the messenger, Morton, to have allowed Aylmer, knowing him to be ! under the influence of drink, to have done as he did with the bo~ " — that Morton was to a certain extent subordinate to Aylmer, and that the latter had been for some time habitually under the influence of liquor. "With regard to the evidence of the express-driver, who stated that he did not see the box (here placed in view of the jury by order of His Honor), it would be for the jury to consider whether it would be a difficult or impossible matter to convey it unperceived beneath a cloak. There was no evidence that the box was subsequently seen until taken from the safe, although the Club was watched throughout the next night. There was notlr'ng so far to connect the defendant Sayers with the conspiracy. With regard to the evidence of Mr Armstrong, the only part where there was any contradiction was in the account he gave of M'Kenzie's statement ia the Council Chamber, a discrepancy easily accounted for when it was considered that a number of tenderers were examined. With respect to the attempt to fix complicity in the conspiracy on Sayers, by means of his conversation with Moffett, it seemed that schedules of quantities had been ordinarily prepared with blank space 3to be subsequently filled up, and he (His Honor) must point out that instep d of fixing guilt on that defendant, it only disclosed an attempt to earn a few guineas honestly, the prevalent impression being that the tenders in the hands of the Government (the latter not having money at command) were mere " feelers," and that fresh ones would be called for. Next, with regard to what was overheard as taking place in the bedroom adjacent to that in which jM'Kenzie and Sayera were writing, he could not direct the jury that it was evidence of a fiesh tender having been prepared. Then again, Sayers' com panionship with Aylmer waa natural enough-they were neighbors, and although there were some matters of a suspicious nature, he could not say the evidence was such as to establish a case against him. "With respect to the others it was different. Aylmer took the box away from the office, M'Kenzie and he went home together, and some vessels were used for a purpose that might have been the opening of the tenders. Then there was M'Kenzie's statement to Mr Dalgleish, and the figures given to Mr Smyth — the latter, not so imprudent as it might appear at first sight, seeing that by betting and talking he was less likely to attract attention than by maintaining a suspicious reticence on the matter. With regard to Mr Shearer's statement as to a conversation with Aylmer, it was not of much importance, and the time at which his tender was put in was uncertain, and as the box was open, it (the tender) might have been opened before the 30th Sept. But Roebuck's tender was sworn to have been put in on that date, and the evidence showed the box to have baen after that time carefully tended. The question was whether the evidence led to a reasonable conclusion that the box was taken down that night and opened, as it must have certainly have been between the 30th Sept. and the 2nd Oct. If it did they should have no hesitation in returning a verdict, uninfluenced by any consideration or sympathy for the pain that might be caused to the families and connections of the defendents who — if they erred — were men of education, and should, therefore, have the more easily kept themselves from giving way to temptation. But if, however, any fair and reasonabble doubt existed on their minds, such as they would be influenced by in the ordinary transactions of life, then it would be their duty to give the defendents the benfit of it. His Honor recapitulated the leading portions of evidence, with only an occasional remark. With reference to tie defendant Aylmer, for instance, His Honor said "he eeetned to have acted most imprudently throughout, the presumption being that he either supposed a right to act as he did, or that it was the recklessness of intoxication." Again, with regard to Dr Monckton's evidence, that on the 2nd of October M'Kenzie said " he did not put in a tender at all — his bona-fide tender was in his (M'Kenzie's) bedroom," His Honor pointed out, that in the view of the prosecution, this went to prove the preparation of a new tender, with an object foiled by the action of the officials of the Provincial Government. The three tenders proved to have been opened having been placed in the hands of the jury for inspection, they retired at 2.30 p.m., returning at 5.30 with the following verdicts : — Aylmer and M'Kenzie Guilty ; Sayers, Not Guilty. Mr Barton applied for an arrest of judgment on some points of law, but each one was overruled by His Honor. iFinally Mr Barton obtained the adjournment of the Court to next morning, at 10 a.m.