SUPREME COURT.

Taranaki Daily News, Volume LII, Issue 189, 14 September 1909, Page 4

SUPREME COURT.

NEW PLYMOUTH, MONDAY. (Before His Honor Mr. Justice Edwards)

The New Plymouth sessions of the Supreme Court opened yesterday morn ; ing. GRAND JURY. The following Grand Jury was empanelled:—Hugh Baily, Ernest Beekbessinger, E. 11. Tribe, James llarppr B. Lepper, A. Lealand, A. 11 Kendall, Arthur L. Humphries, C. T. Mills, S. W. Shaw, J. Skinner, C. 11. Stott, Alfred E. Sykes, Gtistav Tiscii, Choi will Billing, 11. J. Hobbs, T. Avery, A. 11. Herbert, Robert Coleman. E. j! Carthew, William Bigelow. Mr. Tiseh was chosen foreman. HIS HONOR'S CHARGE. ' His 'Honor's charge to the Grand Jury was very brief. He congratulated them upon the comparative immunity from crime which this beautiful and prosperous district had enjoyed since the lost sitting of the Supreme Court. There were but two eases to come before them —the first a case of forgery, and the other, lie regretted to sav. an indecent assault upon a young child. There was no difficult point of law in either ease. I llis Honor briollv directed the jury that I the absence ot any strenuous resistance 1 on the part of the child, such as might I have been expected from an older per-1 son, need have no weight with them in 1 arriving at their decision. I

TRUE BILLS. Tile Grand Jury returned true hills in both eases: Rex v. Alfred Allen, forgery and uttering; and Rex v. John Brown C.itliro, indecent assault. ALLEGED FORGERY.

Alfred A. Allen, a young man,""was charged with having on 17th August, at New Plymouth, forged an order to pay the bearer £lO, purporting to be signed by- Alexander Blackwood Waldie; secondly, knowing it to be forged, used it as if it were genuine, by presenting it to Harry Goldwater; thirdly, that without color of authority he made the document referred to; 'and fourthly, that, knowing it to have been so made, Qie used it as previously mentioned. He pleaded "not guilty." Mr. T. S. Westtfn, Crown Prosecutor, conducted the prosecution, and Mr. F. E. Wilson appeared for the defence. The following jury was empanelled:— Richard Aroa, F. A. Avery, T. Bell, W. R. Wilson, Percy Jury, Ed. Sole' Fred. Ken 'all, R. Edwards, Eraeet w' EdgeeomSteven H. Dabb, F. F. iloski:i', James Sciuilon, Mr. Aroa- was chosen foreman.

Mr- Weston briefly addressed the jurv, reviewing the circumstances of the casV pointing out that the prosecutor was a man addicted to drink. The accused had borne an excellent character as a steward on steamers.

Dr. Leatham, medical superintendent at the New Plymouth Hospital, depoaod that the prosecutor, Waldie, was in the hospital, suffering from n fractured leg. To Mr. Wilson: Waldie was an intemperate man. An intemperate man wis liable to have his memory impaired. Supposing that Waldie was in the middle of a drinking bout, or recovering from one at the time of thi* o/fence, his remembrance of it would probably be impaired. ' |

His Honor remarked that some people had a remarkably clear memory of acts performed whilst they were drunk. Witness' cross-examination was continued. Chronic alcoholics were untruthful He would not say Waldie was a chronic alcoholic, for he did not knr.w sufficient of him.

John Terry, clerk of the Magistrat-'s Court and deputy-registrar of the Supreme Court at New Plymouth, gave formal evidence that the accused had been charged in the Magistrate's Court at New Plymouth, and the evident taken before Mr. H. S. Fitzherbert, S..U. He put in the depositions of the prosecutor's evidence, which had been taken at the hospital. "Alexander Blackwood Waldie stated that lie went Home to England by the Corinthie last April, and returned to, New Zealand by the same steamer last 1 month. Accused was a steward on th.it steamer. Witness arranged with the accused to come and stay at his place Until he got something to do. Witness remembered going to "Ooldwatcr's shop with accused and leaving some nio-iey there. Accused was at 'witness's pl.v'e on the night of August 16th. On I lie following morning Allen was going into New Plymouth, and witness tokf him (lint if lie ran short, of money he could go into Harry Ooldwatcr's and ask iii n for a pound on account. Allen asked if he would want an order, and wjtn"ss replied in the negative, adding that (■old water would give him a pound without an order if Allen said it was from witness. Accused said he would be home that evening. He did not return, ;> iul witness did not see him until this morn-

ing. Tin l visiting card produced ,va*s one of witness's. Witness knew he rr a y e Allen one. The writing on the card°was not witness's. The name signed to the order was witness's, hut the writing was not his. lie did not authorise the accused to draw £lO or write the order. "hi answer to accused, witness said that 011 the evening of August 17th lie might have given Allen a card, hut did not authorise him to write an order, lie had been trader the influence of liquor, but was not bad at that time." Harry Gtoldwater, (manager for the Auckland Clothing Company, Devonstreet, Xew Plymouth, deposed that he had know:i Waldie for several vears.

He knew Waldie's writing. On August 'l.'itli, in the morning, Waldie and"the accused came into witness's busings premises together. He would not say Waldie was frequently given to drink, but he had seen liiui drunk at tiin?s. On this occasion, he came in lie was flashing two £2O bank-notes in his hand, and witness took charge of them, knowing Waldie's weakness for spending money when in that condition.. It was partly on accused's suggestion that witness took charge of the money. On the I.sth and lfitli of the month Waldie drew against this deposit, the accused being there on each oeeasion. On the 17th accused came to the shop by himself. Asked where Waldie was, lie said, "He's home at Lepperton." He said Waldie had sent him in for some money. Asked lio w - much -was required, and he said £lO. Witness said, 'Tt's rather a large, amount to give you -without a written order. Have vou a witten order?" Accused said "Yes." and handed him a visiting card (produced), endorsed, "Please give bearer the sum of £lO.—A. 13. Waldie." Witness remarked, "Waldie must have been in a terrible state to have written like this." He replied, "Oh. he's anyhow." Asked Allen what the moiiGv was required f oy mid the answer was' that Waldie ha;/ sent him in to get stores. Asked what tram aeeused was going out by. He replied, "By the ten to one," ami witness handed over the £lO. The writing was not very like Waldie's. but, kn()\ving the state the man had been in a day or two earlier, lie thought it possible that he had written the order. To Mr. Wilson: W r ahlie was drink on the Friday, the first time he called. T T p ■ was fairly sober when he eaine for . money mi Saturday afternoon. He had been in during the morning for money. ' but he had given him none, so that lie , could not. get more drink. Waldie came in again oil Monday .morning at !) j o'cjock. au.l lie. was perfectly sober then. He had never kept money for the man | Mlore. He had never see:i Waldie 'n such a state that he did not know what he was doing. W'iicn the money ,vas , first handed over to witness it was'inalvi- ' ly on the accused's suggestion and ad- , vice. " '

To his Honor: ITo had known Waldie for a great many v<'nrs. Ho was ®ot a habitual jiar. lf». had never told* witness a lie. Tic was not. one of thone men who wore always drunk, lint went "out the spree"' at interval?, somei tinms being- sober for two or three years. This was the case for the proseeut'yn. 1 "Mr. Wilson said the defence was thnt Waldie had authorised the accused to I write an order, but that he was too drunk to recollect hi* action*. Ho ealljd Walter Henry lladdre.ll. sergeant of police iu charge 0/ Xew Plymouth station, iwho stated that Waldie had come under his notice a good deal oh accoant of his drinking habits. Tie had not often seen him drunk, but knew of Ms failings from reports and from complaints submitted by Waldiu's friends, and from the iseue of prohibition orders. In witness' opinion he was a chronio dipsomaniac. He was not a man who

grew rowdy under drink so as to necessitate being locked up. He was gentlemanly even when drunk. The accused gave evidence on his own behalf. I-le said he was nineteen years of age. lie knew Mr. Waldie as a passenger on the Corinthie to England and o n the return journey. Waldie knew witness was leaving the ship, and asked him to come with him to New Plymouth and take a cadetship on his farm at Lepperton. Waldie got drunk on Mie night of the arrival of the steamer at j Wellington four weeks ago. They came on to New Plymouth next day, and stayed at the I'aranaki Hotel. Waldie | had a few drinks that (Thursday) night, but was not drunk. He was too drunk next day to go out to the farm, again on Saturday. In fact, lie wasn't sober up to the time accused left him. They left for Lepperton on Monday afternoon at 4 o'clock in a eab. They had a bottle of whisky and a bottle of beer in the cab. They got to Lepperton at dusk. They slept in the wharc. They could not get into the house, for Waldie had no keys. Waldie was drinking whisky the w hole night long, and was unlit' in the morning to go to his neighbors for the keys, so accused got them. He came in to town that day. He had only two shillings of his own. He had seen the farm, and had had enough of it, so he asked Waldie for money to go back. Waldie said Goldwater would give Ijiin a pound, but lie insisted on having an order. Waldie pulled a cad from li is ease, and said, "You can write on that." lie fixed no amount, so ac fused drew tell pounds, and left for Wellington. Before leaving he paid the charges due on Waldie's baggage. To Mr. Weston: Waldie named no sum at all when he told him to write on the card. The prosecutor was incapable of signing his name. He did not show Waldie what he had written.

His Honor: Why did you tell Mr. ('.told water these lies about it? Coldwater tiaid: Waldie must have been in a terrible state to write like this." and you said, "He's anyhow." That's a direct representation that it was Waldie's writing on the card.

Accused said he knew he had written for more than he was likely to get if re had made a clean brea6t o'f things, lie was a stranger. His Honor: Yes, you're a stranger, but you're not the 'stranger who was taken in, but the stranger who takes in. \Vhy didn't you, when you crossexamined W'aldie, suggest all these wonderful things? Accused: I didn't-think of them then. His Honor: You see, you're springvig thi6 tale for the first time now when Waldie is not here and you know he cannot be brought here. His Honor, addressing the jury, said that it appeared from the accuseds own evidence that as a .steward on a passenger steamer he made the acquaintance 1 of tin- prosecutor, a man who appeared to be a respectable settler. After a j brier acquaintanceship the accused askod 1 tin 1 olh r man for.CI. He was told he i could get it, but insisted on having an order. ]».-ing given a card, he wrote an order, not for .-CI, hut for .CIO. Kn >wing he would get no money if he to'd the truth, he told Mr. Goldwater a str'jig iof lies. It was perfectly plain that i? j the accused was saybg'what was true ! llc was guilty of a Yi ry serious offence. He might have been indicted for fa se | pretences, and his Honor could nut understand why he had n ot been so <ndicted. To the jury. "If you think that a settler, because he is addicted to liquor and from time to time, as Mr. Goldwater says, 'gets on tne booze,' he is to be robbed in this way, then you will acquit the prisoner." It had been suggested during cross-examination of the doctor that intemperance made a man a liar, and that it impaired his memory. They could safely assume that, but in this ease it was not impossible to believe Waldie's statement that he had never authorised the accused lo write the order upon his card. The jury, nfter about ten minutes' retirement, returned a verdict of ''not guilty."

Ilis Honor: Well, prisoner, you are indicted for forgery. Upon your own evidence, if you're not a forger yon a ye at least a thief. However, tile jurv have found you "not guilty," so with very great regret 1 am compelled to turn von loose upon society again. Discharge the prisoner. ALLEGED INDECENT ASSAULT. John Brown Catliro, an elderly man, was charged with an indecent assault upon a little girl, at liawera, on Il'.st August last, and upon a second count of assault oil (lie same occasion.

Mr. T. S. Weston. Crown Prosecutor, appeared for the Crown, and Mr. J. U. Quilliain for the accused.

The following jury was empanelled: Ralph T. Bullock', Hugh Calla"li:i'i Thomas 11. Jury, John Rollo, Cha-les Tapp, George Carrick, William Tapp, \\ alter Scott. Charles E. Roebuck, e Seamark, Richard Gilbert, T. 11. Blanchctt. .Mr. Blanchett was chosen foreman.

Tile evidence was to the effect thai, the accused persuaded the child to re tire from public view, and there in terfered with her clothing. No furthei offence was committed. The ca<e w.i-. heard with closed doors.

The jury retired at 2.48 p.m. and veturned at 4.38 p.m., the foreman intimating that there was no chance of an agreement being arrived at. IJiis Honor said he hail no power to dismiss them until they had been out for four hours, and the'jury wont back to their room.

■When the Court resumed at 7.12 p.m., tlie jurymen filed into their places. The foreman announced that the jury still disagreed, and there was no chance of a decision being arrived at. His Honor then discharged the jury from further attendance (luring this' sitting of the Court.

.-Mr. Weston moved for a new trial, to lake place on the following day (Tuesday). 'the order was made accordingly, and the re-trial set down for this morning at ten o'clock. CIVIL BUSINESS. ALLEGED SLAXDEE. S. Turkini'ton v. W. A. J. Hull, da : m lor .£IOOO damages for alleged slander. Mr. F E. ■Baunic, K.C. (instructed by Jlcssrs Weston 'anil vVeston), with liiui appeared for the plaintifl, and Jlr. K. Spence for the defendant.

The following jury was empanelled: W. B. Dine, Percy .liny. Knd H, Ho*, kin, Allen Veale, Stephen Dabb, William It. Wilson, H. 'Aroa, Edward Dingle, Ernest l'.lliott, Fred. Prosser, lionahl Marsh, Fred. Kendall. Air. J!. Aroa wo-' chosen foreman.

The pleadings in the amended statement of claim stated that the plaintili was a school-teacher at Malioc, and the defendant a resident of the same place. Jn May, l!)l>!l, the defendant spoke and published of defendant the following words:—"Have nothing to do with 'lurky; he is no good; i have found him out," meaning by those words that the plaintiff was unlit for his' position as a school-teacher. Ow or about tile Klta of -May.

■Mr. Spence interrupted that he had not yet been served with this amended statement of claim, and objected to it going iu.

Mr. JiiUinic ohjeoted Id the amended statement of defenee going in. ,ur it was an absolutely n<»\v delVm-e. wliieh Jiiul been served only that morning. Mr. ISaume: AVh'at is tlie new defence? "Mr. Baurne: Privilege. llis Honor said that it was never too Into to file a defence. Mr. Uaume at this stage was informed that tlii* amended statement of claim had not been served. A*' to the amended defence, U was based on thr pl.iinliifs own pleadings jai tlie original statement of claim, so that it could not have taken tlie other side by .surprise. Air. Baume pointed out that the original statement of claim was issued in i lune. Then, three months afterwards,; it ten o'clock on tlie morning of the trial, the defendant (iled u new and im- j |)ortsmt defence. Tie thought t his "as I in alms'e of the rules of the Court. I

His Honor replied that lie did not think Mr. Spence was guilty (if any impropriety. lir. Spenoe declined lo accept the amended claim, and the ease proceeded on the original claim. Mr. Jiannio opened at considerable length, tracing the lvistorv ol the tillage squabble. Then lie called Samuel Turkmgton. (lie plahitiir. a schoolteacher at Mahoe. in consequence

jf something he heard he saw Hall at the Mahoc at-oru aim to juiu mi Liic ui si-viiai others. He said: "-Now, Mr. Hail, I've been liuormed that you accuse iiie of taking your eiu'i'ois Horn your farm. .U it truer' Hall aii-sw-ered: "Yes, you iuok we cariutd Lnai J bought with the farm." Y\ llm-jKS said: "Tiien you accuse me, Mr. Hall, of stealing your carrots'.'" He said: "I'es; you had a right to take a back of carrots, but you took more than a sack, and \v)iat you took more were mine." Witness asked Hall if he had bought the carrot# and mangolds with tlio larni, and defendant assented, adding: "And you took the carrots." Witness then said: "Then, Mr. JiaJ], you charge me with thieving?" and he replied, "Yes." Witness said: "Sow, Mr. Hall, 1 have a letter from Mr. Johnston, showing that you bought neither the mangolds nor the carrots with the farm, ami that 1 had a right to take tile carrots. 1 must now demand an iipofogy from you." Hall said: "You'll no apology from me; juu look my .•arrots'." Witness then said that unless an upology were forthcoming he would take legal proceedings, and lie asked those present to bear in mind what had pawed. Then witness left for the school. He had not known llall was in the store before going in. Hall overtook tiiiu about ten yanU up the road, casing him a "cow'' and a tiiief, ami challenged him to light. His Honor remarked that it was a pity that these gentlemen had not been aide to settle their diMerenees without coming to Court. Plaintiff stated that a few days later the writ in these proceedings was issued, and not long afterwards Hall came to him, saying he had received the writ, and had" also received a letter froni' Mr. Johnston from which lie had found he was entirely in the wrong. Hall then asked him to accept an apology, remarking at t'u n.uiio ume that he (Turkington) was the beat frieim no had. He further explained, that lie had joined the opposing faction in order to injure him (the plaintiil'), but if the proceedings were stopped he would do no more harm. Plaintiil' retired to ♦Title the matter, and explained to defendant that his reason for so acting was that he had been caught in the act of slander, and that had he not been so caught he would doubtless have gone on and ruined plaintiil' and his family. On June 18th he saw defendant and offered to settle the case if Hall would advertise his apology so as to fuHv dear him of the slander. Hall referred him to his solicitor, Mr. Spence. No settlement was arrived at. Hall had admitted that he had made the statements complained of, and also that the statements were false. On Gth .July vwo members of tile Education Board conducted an enquiry inito certain allegations nmde against the plaintiff. Hall was there, and adopted a hostile attitude towards him. Plaintiil' said to Hallr "Haven't you abused me oi stealing carrots out of your paddock?" He answered; '"Yes. I did." Witness continued, "Mr. Hall, is that statement true, now?" and Hall refused to answer. Plaintiil turned to his solicitor, Mr. Anderson, and had the answer taken down. The "carrot episode" had taken place in litOS. -Johnson having sold a farm to Hall, it was arranged that plaintiil' should look after it until defendant could take possession, and the vendor gave him (Turkington) some of the growing carrots 1 there. Hall never spoke to him about the carrots, until he was tackled about it m the store. He knew Mr. Astburv. They were not on trood terms. Asthury .became a member of the school committee in April last. l(t was in March last that he first

learned that Asthury was unfriendiv towards him. There was some trouble about histoid' having been turned out (111 I lie road from the sclioolgrouud, where it had been locked ill. ' Hill, Benni'tt and others smashed the lock and let the animal out, and .'isriwrv impounded it. About April 201 h Hull, came to his house, and when the door was opened by plaintiff, lie thrust in his foot to prevent the door bein;: shut ill his face. lie : lia<l come to di'iiiainl the return of lis (id deducted by plaint ill' from the amount of a milk bill ilue by Turkingtoii to Hall. Hall threatened tn have plaintiff turned out or tlie district. and to have his milk supply stopped. When at last the door was shut in defendant's face he was hi aril to sav: "You cow, CM have it out ot your hide when 1 get you on t!ie road." The witness concluded: "I endeavored to keep out of his ivav 011 the mad." I'o Mr. Kpence: Tile "loci; business" ,wa« aired at the enquiry. lie had never quarrelled with a rangijr layout hutpounding. The lock cost 3s (id. lie had had it in use for live or six years. He mis "pretty Mire" of tlie cost of it. ile considered it quite an honorable taing to deduct. I ile money from .Mrs. ■> milk bill, lie had hud a good many court cases. -Mr. J limine objected to the line of cross-examination.

.Mr. Spence said lie wisned to show that the plainttill was a man predisposed in litigat.oii ami fund of court, and was never happy unless- tio was in it. (.'niss-exaiiiiuation continued: He had

Nad a case in tin* Supreme Court, in which he sued his own father and mother. I'hey were reputed to be his father and mother. They were lield to lie his lather and mother, but he wasn't able to say that they were. -Mr, Spcikc: Do you mean to say you deny your own parentage? \\ itness admitted that he proposed to issue writs against Mealsrs. Astbury and ISeiuu'tt, also members of the school cuniniittoc, for slanib,. Of course, he might not bring them. Mr. Spence: You keep law-books in your own house, don't you? His Honor: He's very foolish if he doeis.

Plaintiff admitted that lie kept the books, lie denied having had any inquiry into ilis conduct of the Ohario .school, bill, subsequently admitted it.

His Honor then directed that the cross-examiaation should proceed along lines more closely touching tile present case, .Mr. Spence remarking that the other matter had served its purpose in showing to j lM y sort of man | tiie plaintiff was. Cross-examination continued: Hall didn't buy [he carrots with the farm. Hall's farm was opposite plaintiff's house., He could have gone to Hall's house to see him, but met him by chance in the store.

He-examined: Owing to Uie troubles which had arisen, he had some misgiving about going to see defendant at FiS own house.

.Mr. liaiime read the expressed opinion of judges at Home to show that it was a ;iroji.'r thing for the plaint iff to have followed the course he had adopted in laying the foundation of tins action, namely, charging liiui with the .-'lander iu t;ie presence of a third person. He quoted Lord Lyudhiirst. His Honor said he considered his own ideas of propriety were equally as good. Thomas lia.xter Dennett, a farm laborer living at Mangatoki, gave evidence that on or about 14th May last, at Mall's place, he had had a conversation with the defendant, iu which the latter said that Turkiugtou had had pennis- | sion to take a. sack of carrots, and 'he I had taken more, and that what he had taken belonged to him (Hall). Repeatedly questioned bv plaintiff's counsel, he said he could renienilber nothing more nf the conversation. On another occasiim. at the factory, Hull had slid they (witness' employers) should not supply Tui'kington with milk, as the dairy ivas not registered. Witness said he had heard the plaintifl referred to as " Turkey," and when he did he heard more than any man could be expected to remember. Hi.-.'Honor wondered if the "affection-J

ate abbreviation" was held to be slanderous. Counsel discovered that lie was endeavoring to extract certain evidence from this witness wiiic'h was "briefed" for another. Witness remembered that llall had threatened to take his children from the Mithoe school and Bend them to school at KRpuDga. Ho remembered Turki niton's ijucstioniiig of llall at the store. Turkington came in to the store, ami said " (jood morning, gentlemen. Mr. Hall, do you accuse me of stealing your carrots'/" Hall answered, " Ves; you had leave to take a *nck, but you took •more, and wUat more you took were mine." Turkingfcon demanded an «]*>♦ logy and llall replied that he wouldn't got one. Hall said "Go and teach your "children," and Turkington said " I'll teach von." Then Kail followed Turkington out of the store, shaking his fist, "and all we chaps were laughhig." His Honor: Upon my word, I think the |)oople who were amu&d showed more .sense than the people who took it seriously. Witness was not cross-examined. Alexander Simpson, creamery assistant, gave evidence that during May, or jbefore May, the defendant had a conversation with him concerning the plaintill". He could remember Hull saying: "Have nothing to do with Turkington, because he's no good." To Mr. Spence: He thought none the mon- or none the less of Mr. Turkington on account of these words. (leorgc Rotors, farmer at Mahoe, also gave evidence concerning IV conversai fcion at the store. T!i ( . whole thing ; struck him as rather ridiculous. I His Honor said he wa/? inclined to agree | with the witness. No <-ro^-examination. \ William Henry Topp, a laborer, was another of those who witnessed the altercation at the store. 'His evidence ■was corroborative of that previously given. He had lived next to Mr. Turkington for three years, but had had no trouble with him. Cross-examined: During the conversation they referred t<> takin'g the carrots, not to stealing them. Mr. Spcncc intimated that lie proposed to ask for a non-suit, firstly, on the ground's that npon the first count there was no evidence. On the second occasion the words * used were privileged. No jury could come to the conclusion that the words used were defamatory, or capable of any defamatory meaning. Hi 9 Honor could not see how he could withdraw the case from the jury, He -would not say what lie thought at present.

Mr. Spence continued, pointing out that the plaintiff having taken upon Ihimfitelf to invite replies, those replies were privileged, and lie brought the injury -upon himself. Mr. Spence quoted authorities to support his contention. Tho jury was relieved from attendance during the arguments. After further argument His Honor reserved the point. He will give his decision this morning as to whether or not there is a case for the jury. The lines upon iwhich the defence will In- conducted will <lh> a denial that th* words were used; or, if they were used, that they were privileged; or, that the "words, if used, were not capable of defamatory meaning, nor were they intended to be defamatory.