SUPREME COURT.

Taranaki Daily News, Volume LII, Issue 334, 9 March 1910, Page 2

SUPREME COURT.

new Plymouth sessions. Tuesday, maiuiii 8. The New Plymouth sessions of the Supreme Court opened yesterday morning, before lli« Honor '.Mr. .lustice Edwards. GRAND JURY. The following (inuid Jury was sworn: Messrs 1). MeAUuni, dames T. Maunix, Harold Rawson, C. S. Heniiell. ,1. Rollo, Clms. T. lUiudle. 11. ISlyth, L B. •Webster, Benjamin Wells. I'e'rov P. L White, A. 11. Arnold. J. W. Wilson, Percy Lealand, .lames Taylor, Francis Cornwall, John G. Arthur/Walter F. .Jenkins, Edward L. Humphries, Hal Goortaere, Harry J. Gilbert, W. \. Kwing, Joseph Aslier. Mr. Kwing was ehosen foreman. HIS HONOR'S CHARGE. His Honor's charge to the Grand Jury was very brief. He congratulated them on the lightness of their labors, which might, he supposed, be taken as an evidence, of the prosperity of the district; and thus be regarded as satisfactory. There would be only throe before them, and on none of the counts was there any difficulty in regard to law. It was only on the law that they required direction from him. There should be no difficulty in finding that a prima facie case existed against each accused. The Grand Jury returned true hills against John McCarthy, on charges of assault; against W. R. Mackay, failing to keep proper books in his business; and against John Shepherd,, theft from the person at Waitara. They found no bill in the charge against W. R. Mackay of contracting debts without having reasonable probability of paying them. CHARGE OF ASSAULT.

John McCarthy, alias John McArthur, was charged with having assaulted Bridget Campbell by throwing a fryingpan at her, and wounding her, with intent to do grievous bodily harm; with assault, causing actual bodily harm; and with assaulT; the three charges arising out of the one offence. The following jury was empannelled: T. W. White, E. C. King, Percy Olson, Lewis Brompton Olson, Edward Gyde, L. M. Monteath, James OHiver, Jas, R. Hill, L. C. Sladden, H. M. Southam, Albert Theodore Thomson, Joseph O'Shaughnessy. Mr. Hill wa* chosen as foreman.

The accused, who was stone blind, challenged six out of the first eight jury,men called, David Storar Wylie, surgeon, gave •vidence of having been called to the house of Mrs. Campbell. He found her •uffering from a contused incised wound on the head, necessitating the insertion of three stitches. She was also suffering frdm shock. The wound, which was a fairly deep one, involving the whole of the structure of the scalp down to the l/one, might have been caused by the ,'frying-pan (produced) which had been shown him at the time by the police. The woman was probably over 60 years of age. The wound might have proved very serious with such a woman, of advanced age, and with diseased bloodvessels. She also had the back or a&r hand slightly grazed. To the prisoner: The wound on the hand might have been caused a. fewhours before. He had not said in the lower Court that the wound on the head went within half an inch of the bone. The depositions were referred to, and it was found that the witness' words in the lower Court were almost exactly woTd for word with his present testimony.

Bridget Campbell a widow residing in Queen street, stated that the accused and his wife rented three rooms in her house. On the night of February Bth, the prisoner and, his wife had a row. The woman ran to her, and said: "Oh, Mrs. Campbell, lock the door, or else he will come in and kill us." She couldn't find the key. Mr. Berry called out to accused from the other side of the fence, telling accused to "hold his tongue" Accused threw a candle-stick at Berry. Witness told accused that the man that was talking to him had known him before he had picked his eyes out with glass and needles. Then the accused commenced throwing everything he could lay his hands on. Last came the frying-pan, which struck heron the head. Constable Whitehouse picked her up and washed her head until the doctor came. She had suffered a great deal, and even now when she Btooped the wound bled afresh. To the prisoner: Accused did not owe her anything. She and accused had never previously had an argument. On Tuesday, February Bth, she had no visitors at her house. There was no

beer brought into her sitting-room that night, and she didn't think she had any fieer that night. The only beer in the house was what prisoner and his wife had. The fracas took place about 10 or 11 o'clock at nigTlt. The fight between prisoned and his wife did not take place in v witness' sitting-room. The prisoner indulged in a long cross. examination with a view of proving that the*, disturbance took place in Mr?. Campbell's sitting-room, but his Honor advised him to get'to the point, adding: "If you cut this woman's head open with a frying-pan, it doesn't matter if it's in her sitting room or anywhere else." Then the accused's questions sought to emphasise the fact that he and the witness were on good terms, and he could have no motive in assaulting her. His Honor interjected that if the accused thre\y a frying-pan at Constable Whitehouse and it struck this woman he was just as much guilty of assaulting her as if he had thrown at her. That was the law, and it was also commonsense.

Constable E. J. Whitehouse. of New Plymouth, stated that when he got to the house at ahout 11.15 p.m., the accused was standing outside on the veran dah with Mi's. Campbell and another woman whom he called his wife. He was quarrelling with the latter, accusing him of different things and male I ing a great noise. Told him to keep quiet, and told who he was. Accused j replied, "I know yon. Berry, and T'll i do for vou." Accuse'd went inside, and J re-appeared with something bright in I his hand. He threw this and five or J six other articles, and they were all j smashed. The articles were thrown fit. | him. "the supposed Berry." Next, he., threw the frving-pan. and that struck Mrs. Campbell, who was passing at the time. She fell over against the fence. and said. "Mv God. I'm done for." He attended to the woman, sent for the doctor, nnd afterwards arreted the accused". The woman was onlv about nine or ten feet awav from the accused *vhen ho threw the frving-pau, which he!had no doubt wns aimed at him. Tim accused wis like n rondmsin. .As far as he could see. Mrs. Campbell had not . been mixed up in the quarrel Tr the accused: He did not mention

that accused was a cur, and that he had picked his own eyes out in gaol. Saw no articles thrown at accused. Did not say, -'McCarthy, you mongrel, give the woman her key."' John Oliver, night watchman, who had accompanied the previous witness to the scene, gave corroborative evidence. To the accused: Heard no one insult the accused. This closed the case for the prosecution. The accused, having been cautioned, elected to give evidence on his own behalf.

His story was that on the evening in question, Mrs. Campbell entertained several visitors in E'er sitting-room. Several bottles of beer were disposed of. About ten o'clock he and his wife went down town for supper. Coming back, there was some talk about finding a bottle of beer. His wife became excited, and threw tumblers at him. He went to his room. When he heard angry voices a little later, he came out, and fceard someone say, "McCarthy,, you cur. I know you. You picked your eyes out in the Auckland gaol." He returned to his room. Then he came out I again, and was insulted again. Somf - ! one hurle3 articles at him, and he <is struck on the leit breast, and on the lace. He remembered nothing else, for he "was dazed, fair stupid." He had no recollection of ever having assaulted Mrs. Campbell, or of ever having a cross word with her. Neither did he know, nor had lie ever heard, or spoken to, Mr. Berry. Dr. McCleland, gaol surgeon, said that on stripping the man he had found several bruises about his body, a bump on the right jaw, and a slight cut above , the right upper lip. The bruise on his chest was not such a bruise that would have been caused by an article being thrown at him. It had the appearance of having been caused by someone kneeling on him. Mrs. Mary Ellen Eva, wife of Philip Eva, remembered visiting Mrs. Campbell on the evening of Tuesday, Febru-; •try Bth. She could not recall the names ; of the other women present, and had I absolutely no recollection of any beer ! having been brought in. She went with ; accused and his wife to a fish supper- j room, ttnd she gave them a glass of beer from some that she was taking home to her husband. Further questions, and then the witness angrily addressed the accused: "I don't know what you want to bring me here for. I've never been so insulted in my life. I've been twenty-five years in the colony, and I've never been in the Court before. Shame on you to dare to bring my name up here like this." The accused expressed his regret that he had to call the witness in his behalf but pointed out that no disgrace attached to the position. Witness remembered being at Mrs. Campbell's on the previous evening, and knew that Mrs. Campbell's Jia'nd was injured then. Mrs. Grace Maher, of New Plymouth, gave evidence that there had been company at Mrs. Campbell's on the night of Bth February. She did not see any beer there, nor did she know the names of the other visitors. She remembered i people going out with accused and two others to supper. She did not'see accused throwing anything that night. John J. Stagpoole, master baker, of New Plymouth, gave evidence that the prisoner on one occasion complained to him that some people were in the habit of hanging about the house where he ! lived. The prisoner addressed the Court at some length, laying particular stress on the fact that he had been grossly insulted by someone accusing him of hav-

ing picked his own eyes out, when in reality a splinter of steel had entered his left eye and destroyed it, whilst the other failed in sympathy with it. His address was a long string of reiteration, his various "points" being put probably twenty or thirty times. When the speech had been progressing for over half an hour, his Honor said he was .afraid that he was wearying the jury. Everything that had been said had been said full twenty times, and he was quite sure the jury didn't want to hear the twenty first. At" the same time, he would not stop him, even if he wished to keep going until next morning. His Honor said that the facts of tha case, unless the jury disbelieved the Crown witnesses, were quite plain. Unless the jury came to the conclusion that the prisoner was amusing himself, it was clear that he was throwing things with intent to hit somebody, and that •unfortunately the old woman, Mrs. Campbell, came in the road. The jury should take notice of the fact that apparently the prisoner had had no intention of hitting Mrs. Campbell, which was important, as the man was charged with having thrown the frying-pan with intent to do grievous bodily harm to | Bridget Campbell, which had not been proved. It was quite clear that he had | thrown the frying-pan at the constable, who was telling him to keep quiet. | Therefore he should be acquitted on i the first and most serious count, on which he could be sentenced to life im-. prisonment. His Honor remarked that the indictment had been drawn with too great particularity, and that there was, quite a surplusage o'i words. On the; second count, of causing actual bodily harm to the woman by throwing the 'frying-pan at her, the jury might convict, but if they did so he would reserve the law point for the Appeal Court, to j

decide whether or not he had been wrongfully convicted. On the third count, there was the same inadvisable i particularity in his indictment. He was again charged with assaulting the | woman by throwing the frying-pan at | her ,when as a matter of fact he had ' not thrown it at her at- ajlo •' Ofi course, the iaet that he threw-.ithe .pan,,-and it struck the woman, cbn&tlMted ran as sault, or, at any rate;' Qa.ofe«ri']a breach of the peace. His Honofcis&ld-tha't he 1 was hound to raise theseTpoiMsM slaw, for he stood in the position of the prisoners counsel, and had to see that he was not wrongfully convicted. He announced again to the jury that they might convict the man on the second and third counts, but ie felt it his duty to obtain the opini&ft of the highest authority as to the' legality .or otherwise of the conviction on,'the; indictments as drawn. The won'fls "by throwin? a frv!n?-nan at her" should'not 'have i been included in the indictment., , The jury retired at 2.58 p'.m., and re-j turned to thp court-room at:; 3.18 p.m.; to a»k his Honor if he-would'accept a verdict that, the ac'dused did c*anse actual bodily harm to Bridget'Campbell, but not with intent to do-so.'j His Honor said that 'that' was really a verdict of guilty, and that the prisoner would gH the benefit of thp words I in the indictment, if thev were mnt«rial > to it. He repealed that the words ''bv I a frying-pan at her" should j riot have been in the indictment.

At 3.2ij D.m.. the jury reported a verdict of not. guilty on the first count; guilty on the second and third counts. The prisoner will he brought up for sentence this morning at ten o'clock.

A CASE COLLAPSES

William Russell Mackay pleaded nut guiity to a charge of waving, i u U, u three years prior to his bankruptcy in February, VM), failed to keep the usua, and proper books, in his business as a cattle-dealer, which would have set forth his business transactions, and shown his financial position. Mr. T. S. Weston prosecuted for the Crown, and Mr. Geo. Hutchison, of Wanganui, instructed by Mr. Anderson, appeared for the defence. The jury consisted oi the following:— Messrs E. A. Dugdale (foreman), Hugh McAllum, T. R. James, J. Eraser, Jos. 11. Smith, Herbert Sinclair, Harry Grayling, Geo. Davy, C. E. Street, S. Oliver. Frank Richards, and James Julian.

In opening, Mr. Weston, Crown Prosecutor, said the accused was charged with not having, in the three years prior to his bankruptcy, kept such books of account in his business as a cattledealer as were usual and proper to be kept in the conduct of his business. The bankrupt had been engaged in" the carrying business at Stratford, and sold out. He started as a cattle-dealer, on credit. iaving no cash. He gave bills, and apparently paid sometimes in cash. He not only purchased from the auctioneers, but dealt with private individuals. He also had dealings in land. His transactions were considerable, as during the two years preceding his bankruptcy, as far as could be ascertained, they amounted to some £22,670. In reality his dealings would exceed that sum. "He closed his business in April, 1908, and (lid not appear to have sold any stock after March in that year. What he did with the proceeds of the sales was known only to himself. He closed his account with the National Bank in Stratford on 7th April, then being indebted to the bank in £2BO. and was made bankrupt upon the petition oi Abraham and Williams in February, 1909. Mr. Weston thought it would be proved that the accused was hopelessly involved certainly early in 1908, and probably long before that date —perhaps iu February, 1907—and instead of then filing so that his creditors might share in the estate he possessed, he left it to his creditors (Abraham andi Williams) to make him a bankrupt in 1909. The bankrupt's 1 "three days'' statements showed debts £1717 8s 3d. Mr. Coleman, the Deputy Official Assignee at Stratford, administered the estate, and after great trouble taken by him and Mr. Thompson, an accountant at Stratford, a statement of the bankrupt's affairs was made up. Whether the statement was actually completein other words, whether the bankrupt's position when filing was worse than they had made it —was, of course, open to question. The Deputy Official Assignee had admitted proofs oi creditors I to the amount of £ISB3 6s; 3d, and several creditor* named in the bankrupt's three days statement had not proved. The assets were next to nil. Now, how did the Deputy Official Assignee and the accountant prepare the statement? Notwithstanding the character of his business and that he started it upon credit, having no cash, the bankrupt could produce no books beyond the bank pass- , book and some auctioneers' accounts. ' which, however, were not made out in ■ detail; the bank" passbook was not of much use, as the bankrupt had not paid into his account the whole of the moneys : received in the course of his business.

The "Deputy Official Assignee scoured the | country for accounts, and with such as ! he received the statement was prepared, for which the Deputy Official Assignee was deserving of all praise. The bankrupt did not, and, indeed, could not, ! render the accountant anv assistance. | The bankrupt admitted before the Disi tricf Court, when submitted to a public j examination, he kept no books except j rough note-books, and that he destroyed i them as they were used. Mr. Weston | would show that a person in such busij ness as the bankrupt carried on should have kept a cash-book, a ledger, and I certainly a bill-book, giving particulars of bills given to auctioneers and other sellers ot stock, and the bills receivable , upon the sal? of stock. As men of busii ness, could the jurymen sav that the I bankrupt was to bo excused for failing I to keep books? Was it not the duty of a person engaged in a business of some i magnitude to be able to ascertain his I finanei-tl position at any time, to show his creditors how he had expended his ! money, to know whether he was solvent | or not, to lead him to stop should he l'i find himself embarrasseuT&nd not to ob. | tain credit when he saw that to carry | on his business honestly had become impossible? In other words, the necessity in the eyes of the law for bookkeeping was to ensure commercial morality, and j as a preventive of swindling. As the jury well knew, in business credit was j indispensable. Commerce could not be I carried on without it, and thus when a

bankrupt wa« found to have broken the law upon which sound business can be alone carried on, and his creditors had suffered thereby, he should not fie al- [ lowed to go tree. Counsel for the do-1 fence might say cattle-dealers were not I required to keep books, and might even I endeavor to set up that cattle-dealing I was not a business, that it was akin to | farming. Such a defence would be an ; insult to the intelligence of the jury. The record of the public examinat.-rm of the bankrupt at Stratford in Hay, 1909, was put in by the Clerk of the Court at Stratford.' It stated he had l bought a carrying business in Stratford for somewhere about £llOO or £I2OO, putting in so much cash;' how much he did not know. He was not financed by I his father, but had a guarantee of an ; overdraft at the bank. His financial 1 position then wa* sound. He ran the j business for three or four years, losing money in the second year owing to , heavy building expenses'. He sold the business for £11(10, losing £3OO on the transaction. He was not behind at the time. He had sold a town property and made £SOO. He might have owed £6OO at the time. He sold to Butler, and the money thus obtained "squared him up" with the bank and everything. Then he started a business as' a cattle dealer, being solvent, as far as *e knew. He started buying on credit, for he had no cash. He thought that part of the money he got from Butler must have been paid to Xewton King. When he started dealing lie kept rough notebooks, but. he had kept no other books. These note-books merely kept the tally of the slock passing through his hanfts. As the books were filled he destroyed them. About two years before this lie had tried to arrive at his' naneial position. He reckoned up then what stock he had on hand and what he owed. At that time he handed a rough statement of his position to the Xational Bank manager. He had. in addition to his note-books, the auctioneers' account sales, but had not kept all of these. In April, 1908, he first. realised his position, as the result of the.bad state of the stock market. He owed the Bank of New Zealand about £3OO then. After 31st March he contracted debts. He got £IOO from Xewton King. In the middle of April the bank manager (Continued on page 3.)

(Continued from page 2.)

told him .he must square his account,

1:0 . ,>ed x 290 at the end of Alare'i. Out i.o iiad not known, tius before, lae .|j..n.v losi £2BO by him. |»Vhen he gave uw.-- statement to the bank lie must have had 1000 sheep, worth 12s tid a. in.i'.d, 7U cattle, eignt horses, and ihe goodwill of a lease worth £OOO. Jais liabilities were: Newton King £240, Abraham and Williams £BO, Dalgety £1.30, Bank £236. He then had a surplus of £BO9. His liabilities a year later came to £I9OO. He could not account for his loss during the year, uut some of it was made by being to sell cattle at under cost. The bal-ance-sheet since made out by the accountant showed losses of £1354 9s' 5d for two years preceding bankruptcy. He lost money on a farm, probably £3OO to £4OO. On March lith and 13th he got credit from Abraham and Williams for stock £159. They did not ask him as to his financial position, and he did not make any statement concerning it. In January or February lie 'told Abraham everything was all right as far as' he (bankrupt) knew. He gave Abraham £l5O cash then and p.n.'s for £3Bl or thereabouts. Bought stock on credit from Dalgety's in February. He sold a good bit of stock outside the auctioneers. The bank manager asked him to square his account at the end of March. He got a, cheque from "Sing and from Rsbba. He j»'4 King back in full, and paid Hobbs VIM. Told Ivng he wanted £250 for bank balance, and got it. Did not tell him he wanted £IOO from Hobbs). He was , guaranteed up to £IOO at the Stratford branch with X. King, by his brothe*. Xo one had guaranteed payment of his accounts since the bankruptcy. He had not promised the National Bank to pay them. And no one had done so on iii 3 beha'/.

Frank Bird, clerk of the Magistrate's Court at Stratford, and formerly clerk of the District Court, produced the order of adjudication of Maekay as a bankrupt on February 2nd, 1909. Messrs Abraham and Williams were the petitioning creditors. Alfred D.O.A, at Stratford", was asi' e d to put in a statement of the affairs of the bankrupt prepared by him at the time of the bankruptcy. His Honor said that the bankrupt's position had nothing to do with the charge at all. Mr. Hutchison said that he had not objected, as he did not wish to appear to obstruct the prosecution. But it was clear that the man's position had nothing whatever to do with this charge. Mr. Weston said that the iailure in business made the offence more serious. His Honor and Mr. Hutchison differed. Mr. Hutchison admitted that no'books had been kept. The witness was unable to say what books were usual and proper to keep in the business of a cattle-dealer. He could not say what was usual, but he knew what was proper.

Mr. Hutchison: But it must be shown what is usual and proper. The witness continued. The information supplied by the bankrupt was useless in making out a statement of the position of his affairs. The accounts did not show the accused's financial position. The auctioneers' accounts current were of no use to him. Mr. Hutchison: Mr. Coleman, you've never been a stock dealer yourself. No, sir. You've never had a stock dealer through your hands?— No. You've never audited a stock dealer's accounts ?—No.

Or seen a set of books kept by a stock dealer?— No.

J. H. Thompson, accountant and auditor at Stratford, who had been employed by the D.O.A. to make up a statement of Mackay's aecounts, gave evidence that the bankrupt had had no Books, but he had made up a statement from information otherwise obtained. He had had no experience of a stockdealer's books, and did not know what books were usually kept by a cattledealer. Apparently the bankrupt had passed! some £22,000 worth of business through his hands without keeping a solitary book. Mr. Weston: What books do you think it proper that a cattle-dealer should keep? His Honor: T shall tell the jury to disregard Ms answer. Mr Weston, after a brief pause, informed the Court that 'he was not going to trifle with the Court, or to waste its time. He had never done so yet, and he wa3 not going to do so now. It was of no use to mince matters. He could not prove this charge upon the depositions before him, and the depositions were all that he could be expected to proceed upon. On these depositions I can't prove 'what books are usual." His Honor: We'll, Mr. Weston, if vou can't prove it, then the case against the prisoner can't be proved, that's all. If you're not prepared to go on I shall instruct the jury to return a verdict of not guilty. His Honor, addressing the jury, said that no doubt the jury would think this very foolish, for they knew, as he knew, what books were proper to enable this man's position to be disclosed. But the Crown had got to show what was usual and proper in this particular business. There was no evidence to show what was usual and proper in the business of a cattle-dealer, and there was nothing for it but to return a verdict of not guilty. This the jury formally did. Tire prisoner was discharged. As Tie was about to leave the dock, the Judge gave Mackay what he termed "a little bit of advice." "I should .certainlv-advise you," he said, "if ever you start cattle-dealing again, or go into anv other business for that matter, not to rely on such a stroke of luck as you've had this time. For next time you may. as the little boy would put it, strike'a lot of auditors and accountants who know all about cattle-dealers' bonks, and know what is usual and proper." Mr. Hutchison: Tn that case they will

Tcno-w if's usual for them to keep none at all, your Honor. His Honor said there was no doubt, thoueh. that they should keep hooks. Mr. Hutchison said it was very desirable that they should keep proper hooks. His Honor said he oould not say he particularly regretted that the ease hadbroken down, for hp -wouldn't like to have to send a man to jraol for not keepin? hooks, but he might have been forced to. A WATTAttA CASE. John Shenherd pleaded not guilty to ohnvces of having on October 27. 100!), (n robbed Thomas Palmer of a metal watch and chain, valued at 20s. and about 30? in ninnev: (2) stolon these Articles from the person of Palmer: (3) stolen the articles: and (4} received the ivaloli and chain knowing them to have boon dishonestlv obtained. The inry was the same as that empanelled for the previous ease, there not boinc? another panel available at the moment, owing to the waiting jurors

having teen relieved from attendance for a further half-hour. Mr. T. S. Weston prosecuted. Mr. A. H. Johnstone appeared for accused. Thomas Palmer, station hand, living j at Awakino. stated that a short time l ago he was at Waitara. He did not I know the exact date. He had a watch and chain; and some money, but he was not sure exactly how much. The watch produced was his, but not the chain attached to it. Another chain produced was his. Just before 10 o'clock at night witness visited an hotel with a friend named Battley. A little later j lu> visited the yard of the hotel. Then someone, he could not say who it was, came behind and struck him, causing him to fall. When he recovered consciousness he missed his watch, chain I and money. When he went to Waitara !he had 32s or 33s with him. He had i been spending very freely. To His Honour: He was not drunk. His Honour: Were you sober? Witness: Well, I was not really sober, but I was not drunk. I was capable, i To Mr Johnstone: You say you were ! spending very freely. What were you. | spending on? Witness: Oh! well His Honour said the witness had confessed to spending it in "lush." Mr Johnstone. cross-examined witness at length as to his sobriety. Witness insi?M tJwt he was "capable." He did , | not know that tie was ordered out of I the hotel. He did not see anyone in ' the locality when he was knocked down. It was after "coming to" that he ar- ' rived at the conclusion that he had j been knocked down. He had not stated I in the lower Court that he was knocked down. He knew quite well that he didn't fall down. Mr Johnstone: I suppose in your experience you've drank a good deal?— Yes. And that when you get into' the open air after "lushing*" that the fresh air causes something peculiar to steal over you, and make you less steady?— Yes. Don't you think that this was what happened" that night?—No; I wasn't that bad. Evidence continued: He didn't take medical advice about the knock that he received. Upon "coming to" he crossed the bridge and went to sleep in a shed. He felt sore about the rifts. Ho had no remembrance of having his watch and chain with him when he left the hotel, but he had them so fastened that he couldn't lose them. He didn't advertise for the articles, but merely reported his loss to the police. Constable Lapouple, stationed at Waitara, gave evidence that on the morning of the 28th October he took a de-' scription of some property that Palmer ' reported he had lost on the night pre- ' vious. On November 16th he arrested the accused on a charge of vagrancy, and found on him the watch and chain as described by Palmer. The watch, however, wa3 attached to a chain that was not Palmer's. In answer to questions, the accused said he had got the watch and chain from Wellington, and had had them for about three months; also that they were his own property. The witness had known the accused for some time, ever since he had been stationed there. He did but little work, occasionally assisted on the wharves, but ! frequently hung about the hotels. His Honor: How many hoteh are there ?. Witness: Three. | His Honor: And what is the populaI tion of Waitara? I Witness could not answer, but Mr. Johnston supplied the information that Waitara was "on the outskirts oi civilisation." A little later His Honor referred to Waitara as a town of 200 or , 200 people. To Mr. Johnstone: When arrested the accused had been drinking. He had £1 4s Od on him, but ,was sentenced to seven days' goal for having insufficient means of support. He had not v.-u-ned the accused that there was any ~'..: nt about the ownership of the watch anu chain found on him. . Lewk D. Melvor, constable, stationed in New Plymouth, gave evidence of having arrested accused on the present charge on November 23rd. He read the warrant over to him, and the accused replied, "Excuse me, sir, but I know nothing at all about it." At the police station Shepherd pulled a chain from his jacket, and said, "This is the chain .that's in dispute. The chain that Constable Lapouple has, attached to the watch, is my own property. I picked up this chain, attached to the watch, between the Silver Grid and Pearce's blacksmith's shop. Herbert Longstaff saw me pick it up." Herbert Longstaff, a labourer, of Waitara, knew the accused fairly well. He could not 3ay whether he had seen him pick up a watch and chain in the street. By permission of the court Mr. Weston cross-examined the witness as hostile, and elicited the information that he had never seen the accused pick up the watch and chain. Evidence was given that the street in which the watch and chain were alleged to have Been round was an alleyway leading from West Quay to the back of the hotel. The accused gave evidence on his own behalf. He said he had been for ten years In the navy, and produced his discharge from there and from the merchant service, giving him a first-class character. In Waitara he had worked for Borthwick and Sons in charge of the barges oarrying meat to the Home liners in the Waitara roadstead. In the intervals between the arrivals of the vessels he engaged in fishing or worked

on the wharves. He had never seen Palmer in his life until he saw him in the lower court He picked up the watch and chain in the alleyway between the Silver Grid and Pearce's blacksmith's shop one evening just before dark. He had not heard any enquiries about it. He wore both for some time, and then changed the chain for one which had a little better appearance. Prior to his arrest for vagrancy he had been out of Waitara for eight days on St trip with the steamer Pitoitoi. He returned on a Sunday evening, was paid on Monday, and he drank until Tuesday evening, when he was arrested. He had £1 4s Od of his £4 wages on him then. He was muddled. Tolfr. Weston: The silver chain belonged to him. He could not remember telling the Waitara constable that he had got the articles in Wellington. He was drunk at the time. He had honestly thought that Longstaff was with him when he picked up the watch and chain. He made no effort to find the owner. To his Honor: He never opened the watch. His Honor remarked that the accused was a very peculiar man. He remarked also that that man was a thief who, findins something that could be identified, kept it for the purpose of making it his own. Counsel addressed the Court at some length. His Honor, in summing up, pointed out. that theft was seldom proved by the evidence of eye-witnesses, for those who

intended to steal did not do so with the eye 3 of others upon them. The ordinary method of proof was by proving possession of the stolen goods by the accused person within a short period of the ot- j fence being committed. Then the onus rested on the accused of showing how he came to be possessed of the property. His Honor said he agreed with Mr. Johnstone's contention that the prisoner could not be convicted of robbery, i.e., t>f forcible theft. The probability was that Palmer was pretty well drunk when he lost his watch and chain, but the prisoner had been found with them in his possession, and it wasn't really materia! whether Palmer had been j robbed or had merely lost them. Picking up a lost article was quite an inno'cent action, but then the person picking it up became guilty of theft immediately he designed to keep the article for himself. The degree of culpability, of course, depended a good deal upon the nature of the article found. Tf a man , picked up a sovereign, the ownership of which could not be proved easily, he could not be expected to go up and' down the street asking every second person he met, "Haye you lost a (sovereign?" But such an article as a watch, which might easily be identified, was quite different. In such a case the proper course to adopt was to notify the police, of whom enquiries could be ..made by the owhW. If tile article wore very valuable, it could also be identified. Jn the present case the watch was easily .identifiable, for the name of the owner ■was legibly Inscribed inside the case, The jury retired at 5.40 p.m., and, after returning to the court at eight o'clock for direction as to what verdict migfit be Brought in, retired again to the juryroom. At half-past ten o'clock they returned to the court, and the foreman reported that the jury had not been able to agree, nor wa3 there any likelihood of it. His Honor informed the jury that if there were ?ny substantial number of the jury who were of the opinion that the'man should be convicted they were still entitled to take into consideration the fact that their confreres, as honest men, held a reasonable doubt as to the prisoner's guilt, and they might on those grounds—that the proof was not conclusive—bring in a verdict for acquittal. The ioremaii intimated that there 'wag a majority for acquittal, and his Honor-said that his remarks applied in that case also. Those who were for conviction were entitled to give the others credit for their opinions, and it was competent for them, even if not convinced of tTle innocence of the prisoner, to acouit him. A short retirement, and the jury j brought In" a verdict of not oruilty. The prisoner was then discharged. An order was made for returning tmWatch to Palmer and the cash to Shenherd. The Court adjourned till this morning at 10 o'clock.