DISTRICT COURT.

Taranaki Daily News, Volume XXIII, Issue 190, 22 August 1901, Page 2

DISTRICT COURT.

Wednesday, August 21st. (Before;! His Honour District Judge .. ,:-. ; Xj : . ..,'ss Kettle.),; , ; ,,.^gi3v,' ; :!^- ' APPROPRIATION OP rKl William Douglas Scott, of Opunake, was charged with stalling on 9th O.itc>r, 1899, £3B 18* 9d, the propeKy of Ernest P. Edmunds,

Mr. Kerr prosecuted on behalf of the Crown, and accused, who pleaded " not guilty," was defended by Mr. J. 8. Roy. The following jury was empanelled : Messrs W. P. Brooking (foreman) R. H. Sjle, Frederick Marsb, W, Fcakir, ! A, P. O'Leary, Joseph H. Smith, John ■ Jenkinson, J. Barron, M. B. McJannet, James Ridland, R. Eailby, G. Knight. Mr. Kerr briefly stated the case for the prosecution, which was that accused was an auctioneer at Opunake up to the time of filing bis petition in bankruptcy, when bis liabilities amounted to £3BOO. He stated the circumstances which had Ud to ihe present charge, drawing attention to t,he omission of the accused to keep a trust account, resulting in Edmunds having to pay the amount of a promissory note twice over. He called A. H. Holmes, Clerk of the Court, who produced the order dated 26rh March, 1898, adjudicating acjused bankrupt. He also produced the depositions taken in the District Oourt on accused's public examinations in October, 1900, and May, 1901. Witoess read out the following admissions made by accused : —Ha. Kept no trust account... My filed s'a'ementsi.oived a dtficiorcy of .£3800.. . Th« promise wy not.-s lefcried to in exhibit G were given to me by persons to. whom I fold (Among thesn w;is that given by Edmunds for £3B 18s 9d.) I admit converting to my own use the amoun'S as sli."vn in exhib : t G.

Jiuigs 0. Davio j , D 0.A., produced accr.s ii's ledg. r showing that EJmuuds was etedied with cash received for p.n. £3B 18s 91. On the other side were coutras £22 4s Id. In a previous account Edmunds was debited wi h £3B 18 9d, amount of an outs'al d ng p n.

His Honour—lf that were so it would siem 'hit the account should sho«- the £3B 18s 94 and the £22 4s 6rt debi'ed to Edmunds.-

Witness read over the previous item'i in the ace >unt showing a balance in Srot 's hands of £l6 9d 8d in favour of Edmunds.

To Mr. Roy: No proceedings were taken for a public examination till October, and then again in May. The estate was still open, and it was not ilikoly to be closed until the costs of the I present prcceidings wero ascertained. Accused had given all information in his power.

His Honour : I do not see the relevancy of this evidence. The quas tion is—Did accused steal the money mentioned in the indictment? Witness: The account is balanced up in the l»ger. To His Horour: There were no cash stock or sale books. Ernest P. Edmunds, a farmer, residing at Opunake, deposed that he had business dealings with occased almost from the time of his starting as auctioneer. In 1899 he purchased stock and goods from him, and gave a bill in favour of accused for £3B 8s 9d. This i became due in November 3rd. Before October 9th, on two occasions, accused sold stock for witness, and had in hand £47 odd. On October 10th accused gave witness a cheque for £2 16 j 8d to square accounts, and witness understood accused to say he would take the bill up. Could not produce the receipt giViVii, as it was in Mr. Barton's hand*, nod (.hough witness had written for it he had cot obtained it. The bill was not tiken up, and witness was sued for it in the Supreme Court, and had to pay the amount) and cote. Had not been repaid, but had proved for tho amount against Scott's estate. To Mr. Roy: Had spoken to tho banker ou the day following the fquirins of the account, and was told that thn bill would be met, Thought it hid been met, as he had rcceivr d no notice of its being dishonoured. Mr. Roy called no evidence, but drew attention to the usual mathod of conducting an auctioneer's business. iHe submitted that the wh le matter 'was simply one of debtor and creditor, I and should not have come before flu 1 Court. He quoted the clause in tli- [ Criminal Code Act bearing on the 1 point at issue, and contended that the transactions between Scott aad EdImunds wfre on straightforward business lines, and the lattei 's evidence | showed that this was the case. i His Honour: Edmunds statr d in [ his evidence that on October 10th he j distinctly notified Soott that the sale proceeds of his (Edmund's) catt'e were I to go to meeting the p.n. [ Mr. Boy continuing said it was evident Edmunds lookud on the matter as la pure debt. ! Mr. Kerr asked that the jury should bo directed that Scott held certain money on trust for Edmunds and had ; appropriated it.

His Honour said tha ca-e was veiv simple ar.d the facts few. After r.."viewiog the facts as disclosed by the evidor.o-3 a».d not disputed, His Honour said i»Dy honest roau would have hold Edmund's money in trust for taking up the bill. An innocent holder of this bill would naturally require payment, thus Edmunds had To pay tho amount twica over. Tho question the jury \vd to consider was whether tho transaction of Scott was honest and such ns any ono cf them would have transacted. Knowing he was in difficulties, and looking at the whole business, would tha jury have used this monoy in the way ? Then came the question had Scott committed the crime known as stealing. Under the Auctioneers' Act it was laid down how| s r de proceeds should bo dealt with, and .in auctioneer, if he conducted businosh properly, must plrce all sale moneys toj a trust account and not mix them up in bis general business account. Do I fcndMut did cot do this ar.d the question was whether ho did not frandu ! lently app - opi'iat-i tboninouut. Undei- 1 the Ac 1 ", menticned an auctioneer ni.t I accounting for monoy received from s<le3 was guilty of larcsny. Hi* Honour alsa quoted the Criminal Code Act, Section 220, *hioh, though not

referring specially to auctioneers, contained a similar provision. Tiie jury retired at 12.55 and returned at 5 minutes p'ist 1 with a yerdict of guilty. Two other chwges were then preferred against, tho accused, (1) Failing to keep proper books, to which accused pleaded guilty, and (2) steiling £2B 3s 7d, property of Arthur Bircbal l .

Mr. Roy intimated that he was I about to make an application for probation and asked that during the luncheon adjournment accused should be rolea^id,

His Honour doubted whether he had the power to take this course, and after looking at the Act decided that he could cot discbarge the accused in the interval.

On the Court resuming, Mr. Roy asked that Scott should be admitted to probation, on the charges totwhicb 1™ hmi pleaded guilty, as he was a iii'sfc offender. Though there were three counts they could have been included in one. Defendant bad been drawn into Irs present position through drink, anrf Mr. Roy pointed out tha! ,he had not robbed anyone wilfully.

His Honour t-aid the accused had] evidently been a "hail-fellow-well-met young maa," who was successful at first in business, a"\d was led into drinking and gambling habits among n 'ofe of " sharks," and lost his head. His whole business had tbengot into a roaz<». But his good nature could not be admitted as a plea; the case lor the Court to consider was one of commercial morality, and whether this kind of thing could be allowed. He would take time to consider the case.

Mr, Roy urged that accused should be admitted to bail.

His Honour said he had no jurisdiction enabling him to do so. Continuing, he said his inclination was always ■o give a man a chance, if he was a first offender. His plan was to try to assist in reforming a man. The system ■if giving a man six or twelve months' imprisonment was an easy way of get--1 nirig lid of a case liko this ; hut he did net agree with it. Hu would ctrefully consider all the details of this casn, and give bis decision next morning. D.O.A. V. KNOWLES, This was an application by Mr. Kerr (for the Deputy Official Assignee) for an order decreeing one Knowles a trust"« of the sal-iyai'ds at Opunake, for Scot's estate, and nsking for J5150 fer broach of trust On the c>Be reing called Mr. K«tr intimites that Knowles' attorney (Mr. Tindle) had comuromi-ed the claim by undertaking to pw ,£325, and Mr. Kerr asked that the case be s'ruck out.

The case was Accordingly struck out, and the Court adjourned.