SUPREME COURT.

Taranaki Daily News, Volume LIII, Issue 69, 30 June 1910, Page 2

SUPREME COURT.

ALLEGED SHEEP-STEALING. TWO YOUNG MEN CHARGED. A LENGTHY HEARING. (Before his Honor Mr. Justice Chapman) The Supreme Court sessions resumed yesterday morning, when the case of -Rex v. Albert Pickup Wood and Stanley White, on charges of sheep-stealing were called on. THE CHARGES. The accused were charged conjointly with having stolen, at Tututawa, on Tuesday, April.sth last, eighteen sheep, valued at £ll Bs, the property of Frederick Bayly, sheep-farmer, of Tututawa; and one sheep, valued at Bs, the property of Thomas Godkin, of Puniwhakau, the> said sheep being then in the possession of Frederick Bayly, as bailee. Wood was further charged with having received nineteen sheep, which had been previously stolen, knowing them to have been dishonestly obtained. / "NOT GUILTY." Both accused pleaded not guilty. Mr", T, S, Weston; with him Mr. 0. H. Weston, appeifeii "for t fle Crown, and Mr. Robert Spence",. Cf Stratford, appeared for both accused. v THE JURY. " T "-■„ ... The following jury of twelve was empanelled:—Messrs W. Butler (foreman). P. H. Passau, Fred. Moverley, A. C. Harrison, *Wm. H. Fitzpatrick, Arthur H. Ambury, Wm. Hall, H. C. Hammond, John Grooby, Chas. E. Collins, A. A. Handley, and E. G. McKenzie. Four of the jurors called were ordered by the Crown Prosecutor to "stand by," and four were challenged by the defence. CROWN) PROSECUTOR'S ADDRESS. Mr. T. S. Weston opened for the prosecution in an exhaustive address which lasted just an hour. He said:— As you have heard, "both the accused stand charged with sheep stealing, and Wood is charged in the alternative with receiving sheep knowing them to have been stolen. The facts are these: The prosecutor, Mr. Fred Bayly, is a sheep farmer at Tututawa, some 45 miles irom New Plymouth. Wood, the accused, is also a iarmer, his farm being some six 'miles further along the road, or about 51 miles from New Plymouth. The accused Appleby is Wood's shepherd. Mr. Bayly's estate consists of some 2142 acres of flat and hilly country. His flock is composed of about 3500 superior sheep of well into the Lincoln breed. The breed I will ask you, to bear in mind. The estate is distant from Douglas, where Mr. Newton King holds periodical stock sales, 4y 2 miles, »u«

as no doubt you are aware, Stratford ( lies on the New Plymouth side of Doug-; las. Mr. Bayly's homestead, which is very' compact, adjoins the main road, which is taken through a gorge, and an excellent road it is for,'sheep to travel!

over. The driving can be made fairly i speedily. The plan' of Mr. Bayly's! homestead (B) shwys the.residence, outbuildings, pens and gates, and also por-, tion of the home paddock of 28 acreaj (mostly high ground), and ' this; plan | will tie more helpful to you than anything more I can say. in respect of the homestead. I will call your .particular attention to the home paddock and the two gates, A and B on plan B, as these will form important features in the case before you. Gate A is heavy and difficult to move, resting as it does upon ! the ground; indeed, when it has to be opened it has to be lifted. It is hung with wire, top and bottom, it overlaps i the gate posts and opens out into the holding or front yard shown on piaa B.

It is so fixed and it so stands and is , so heavy that neither cattle nor in either the "back sheep yard" o* in'the "holding or front yard" could push :t open. This gate A was seldom used;, it was kept shut; and, I am instructed.' it had not been opened by the Baylys i 1 since some time in the middle of March;, I last, when a Mr. Barleyman, a neighbor.; dipped his sheep in the dip you will j notice upon the plan. It was a gate| not necessary to be Used except upon! special occasions. Gate B has been re-j recently substituted for the one that, was there on the'sth April last. This!

gate was not ..always shut, as, when necessary for the purposes of the estate the stock grazing in the home paddock'would ibe driven through it into the adjoining pen. On the sth April last the crate was similar to gate A, except that Tt was hu'ng on hinges, the top hinge i out a little, which caused the other end of the gate to rest upon the ground, as gate A does. It overlapped the post some five inches and more than gate A does, consequently the old gate- was like gate A, difficult, to move. Mr.Bayly's yards are. sheep-proof, as also are the estate fences, which have eight wires along the road and seven in the rest. You will, however, see •on the photos that a short piece of fencing of the .htane paddock on the road line has been carried over low, swampy ground. It is possible from what I have heard that my friend will say that on the sth April sheep could have crawled under this piece of fencing on to the road. Anticipating him and his possible defence on this point, I shall produce evidence

from which you will see that, even if it] were .possible for them to do so 'Mr Bayly's sheep were never known to and, did not crawl under it and so escape on to the road. On the road from Douglas to Mr. Bavlv's estate, and distant 6b chains from Mr. Bayly's wool shed m a straight line, and standing on high ground, is Mr. Bayly's cattle stock yaid. From this spot a full view of the home- j stead and of the home paddock i» had This view is lost after proceeding about three chains down the winding descending gorge road to Mr. Bayly's, and >s not picked up again until the homestead is reached. As I have said, Mi. Bayly's farm is about 4% miles from Do Has, while Wood's is some «x mil« further along the road, hence Wood, Sen either going to or returning from,. Air Newton King's saleyards at Dougla ,' must pass close to Baylv s hometend Now, on the 4th April. Mr. Bayly had grazing on the home paddock ad-| await to his homestead, some Jtt wr, 40 sheep of the breed and ear-marks he will describe. One was a ram which he f had purchased from Mr. Hoskm of Bel Sod, three Years before, a wether o . ATr f odkin's he was taking care of. and. Sme wethers he had purchased from a; Ah Hine in September last and some of, J 'own breeding. The wethers were a L\ kept for killing. On the 4th Api 1 A BaVlv returned to New Plymouth from a "visit of inspection leaving lm j twTsons, Oscar and Howard Bayly, with Kendall, a shepherd, at half-past eight next day, the sth, HonSdßavlvVA Kendall left the homestead tomuste*, and Oscar Bavlvat | -half-past ten started for Stratford. The homestead waj then for the time being deserted. At fialf-past ten o'clock, when* Oscar Baylv IjHt the farm, he saw some So or so shfcp in front of the home-, M* a A «n tlMirwriLand. some Myona the 1

whether anyone was in front of the sheep—there was certainly no one behind them. Mr. Bayly, as he went along the road in front of the farm, counted about 15 of his father's 30 or 40 sheep in the "home paddock." He does not,, however, pretend to say that, then there wer» no more than the 15 in the paddock. When Howard Bayly and Kendall returned to the homestead at noon to lunch, a mob of sheep, a similar number to those seen by Oscar Bayly at halfpast ten, were in the "holding and back yards" with two men, one of whom was recognised by Howard Bayly as Wood. Kendall did not 'know either of the two men. It is clear that gate A must have' ■been deliberately lifted open by someone to let the mob of sheep that there were into the back yard. The sheep, •it is absolutely certain, could not have moved the gate A, seeing, apart from •it weight, that it opens Into the yard in which they were seen. I think you will say that unquestionably Wood and the other mini were in charge of that mob of sheep at mid-day on the sth April. When Howard Bayly and Kendall finished the day's mustering the latter had occasion to go to the "home padock" and found Mr. Bayly's 30 or 40 sheep gone. The gates were closed. Now, what had become of the 30 or 40 sheep ? Of course, it will be for you to say, after hearing the evidence we shall place before you. We shall account for 19; as for the rest Mr. Bayly would like to !know where they are. Had the two' men, seen in the sheep-yard at noon, anything to do with the missing of those sheep? On Monday, the 4th April, Mr. Newton King held a sale of stock at Douglas, Mr. Webster, of Stratford, be-, imj tie auctioneer. At that sale Mr. Webster will tell you that Wood was present, and purchased 528 sheep, which he (Webster) submitted for sale in lbts oh account of Messrs Glasgow, Anderson, Gilford and Bowater. These sheep were culls, and of different quality, condition and breed to Mr. Bayly's flock of 30 or 40 sheep in the "home paddocks." As you will hear Wood did not purchase a ram at that sale; neither did he purchase fat wethers. Mr. Webster will tell you presently what sheep and from what flocks offered Wood bought. On the oth April, the day following the sale, a person named Gedge was at half-past eight in the morning on his way to Douglas to fetch a mob of sheep that his employer, a Mr. McMillan., had purchased at the auction held on the previous, day. He met the accused Stanley Appleby, also in charge of a mob of sheep travelling in the direction of Mr. Bayly's and Wood's places. The meeting W Gedge with Stanley Appleby occurred where Bayly's stockyard stands, and, as I have told you, from that point a good view of Bayly's homestead and "home f ad(lock" is' had. Gedge proceeded to ! Douglas, and returned with his sheep :'between 12 and I—four hours after he 'had met Anpleuy. It was fair travel-

ling, but the road is very excellent. He stopped at Bayly's stockyard, and from there saw Appleby in Bayly's "home paddock" driving ' sheep from it in the direction of Bayly's wool shed, near the main road. You/will see the position of the wool'shed.on the plan B. Gedge continued on his way, and when reaching Bayly's homestead saw Appleby's mob, about 400 or 500, in Bayly's yards. He assisted Appleby to drive into the yards some twelve of his (Appleby's) stra»-

glers, and then, the- road being clear, went on his way, in the direction 'of Wood's place. Thus Appleby had taken over four hours to drive his mob from the stockyard to Bayly's homestead. The mob of sheep seen by Oscar Bayly must have been the mob in charge of Appleby. What could have taken him so long, it is difficult to understand, knowing as he did know : that Gedge would soon be following him and the two mobs might get inter-mixed. Either of these yards (that is, the holding or back yards) would hold some 2000 sheep. Thus one of theni would have held [Wood's mob. Thus Appleby had no oc-

casion to open the gate A and use the back yard. Now, assuming Gedge to be the witness of truth, those sheep m the "home paddock" must have been driven by Appiebv in the direction of the wool shed, either just before *r- just after 1 the return to the homestead of Howard Baylv and Kendall to lunch, and when the'v saw the two men, Wood being one, in the holding yard. On the following Sunday Gedge saw the two aci cused at Wood's wool shed and this is hvliflt passed between Wood and Gedge: I says "Wood asked me (Gedge) if I I had met any sheep on the road going lout (to Douglas). I told him only the 'mob Appiebv was driving. Then he asked me if" I had seen any sheep in Bayly's paddock. I told him I had seen Stanley Appleby driving some out of the paddock. Then he (Wood) asked St-i----ley, who was present, whose sheep t'w were, 'Bavlv's or ours,' and Appleby said

they were 'ours' (Wood's)." Did Wood satisfy himself whose sheep Appleby had driven from Mr. Bayly's paddock? This he certainly ought to have done as an honest man. Now, returning to the sth April. In due course Appleby's mob that he was driving proceeded on its way from Bayly's yards, in the direction of Wood's, and 'passed a Mr. Barron's farm at about 3 o'clock. This farm is about two miles distant from Bayly's homestead. Barron had attended the Douglas sale on the prey l "' l4 day, and so knew the character of the sheep that were then put up. ood headed these sheep, but the man bnn 0 - ing up the rear was a stranger to Barron. Mr. Barron noticed that s 9J? e , or 40 of the mob were entirely different from anything he had seen at the Douglas sale; the sheep he saw with Wood were "prime wethers." Then he said nothing to Wood, though perhaps he thought a '?ood deal. On the following Saturday, the oth April, however, Wood passed Barron's place." He stopped, and the following conversation between tile two was held: Barron says Wood stooped, and, having heard that lie had lost some sheep, I said to 'him, Wood, have vou recovered those sheep you lost?' 'He replied, 'No; I think they are at Poho'kura, but I have found 40 or 50 crood wethers amongst those I bought at Douolas. They are bonnv wethers. 1 replied, 'Oil, well, tliey will make up for those vou lost.' Woods replied, Yes, and walked on," Now, were any of the 30 or 40 sheen seen by Mr. Barron Bavlv's sheep? What does Wood himself sav? On the 3rd June, three or four davs after the case was heard in the Police Court. Norris, a settler living in Wood's district, will tell us that he saw Wood and had the following conversation with him: —"Wood said to me 'What do vou think of the case? 1 replied. 'Well, according to the evidence, it looks pre!;tv bad against vou.' Woods I replied, 'There is 110 doubt that the I : sheep are Bavlv's, but I can prove that I ' bought them at the last Douglas sale.'" | We r sliall *ee presently whether or not ho did purchase them at that sale. Oscar, Baylv will tell us that a few days after 1 the accused were committed for trial Wood requested permission to examine I gate A on plan B. After the examination he remarked to Oscar Bayly and 8. Kendall, who were standing by: "it looks prettv bad for the young fellow.' Obviously, Wood must have referred to Appleby. Now, after making inquiries ' in respect of his thirty or forty misstmz sheep. Baviv and his f>on Oscar went to Wood's i>lace. In refily to qaestrons, !w m j ' bavin,■straeglerS .m lus

flock, and said that 400 or so sheep that were there in one of Qiis pens hacl ibeenj purchased by him at the Douglas sale j on April 4. . These sheep were, I be- j lieve, in the pen for marking or some such purpose. Bayly walked into the. yard, and the first sheep he noticed was his ram, then he saw Godkin's sheep (a sheep he was talcing care of for that gentleman). Wood at first said he had purchased this sheep (Godkin's) from Mr. M'Millan, but finding Bayly knew too much, he afterwards said he bought it at' the Douglas sale. This was contradiction number one. When Bayly directed his son to catch the ram he had identified, the same answer was made: "I bought him at the Douglas sale with some ewes." Wood recently put his earmark on these sheep, and in so doing had partly destroyed Bayly's. A'ow, the tip of the ram's right ear had been cut off in the centre of the earmark, thus leaving part of Bayly's earmark, and a slit had been made in the left ear. ' When Bayly told Wood that the ear as cut was not his (Wood's) mark, Wood replied he had made a mistake, that the right ear should have been cut. Hoskin's earmark on the ram was intact, it having been made nearer'the head than Bayly's. Bayly at the time had forgotten Hoskin's (brand, but had recognised the ram bf its general appearance. Bayly then taxed Wood with having, Iby tipping' tie ear, destroyed his (Bayly's) brand. ' How easy it would have been for Wood, even at this late day, to have ascertained—if there had in the meantime /been any doubt on the point—whether ike sheep Bayly claimed were really Ms and so haye JW.tfid fls & straight and- honest man and a good neighbour. Tljs hour was then late and as Bayly 'tvas determined to have a complete infection of Wood's flock, the next day(Sunday) was fixed for the purpose. / While the others were mustering; tie sheep .on the Sunday morning, Bayly saw Applet and Bayly will say .the following conversation was heard:-/-"While they were mustering I Avaiketj up to Wood's whare where the accused'' Appleby was; after talking to him.'awhile, I asked him if he had seen' a ram 'between the Douglas sale yards Ihd my yards. He replied ISTo, the- 'first, I heard of it was last night.' \jt said, 'lt is a strange coi»£ dence that m|y sheep-should haye ueen missed, a hxr-hburs after you passed.' He said, 'Yes it is, I saw them in jour paddock as I was driving my sheep al;ong, and! there were about 40 of them, but when £ came back to meet Wood, I did' not see them. I thought someone must Have mustered them." Now, it [ will be seen'that while the mob were in Bayly's vari Wood went out to search for some sheep he hacl lost, but as oo;; was seen il the yard oi pen, and as Wood and Appleby were seen bv Mr. Barron alsc at about 2 o'clock, driving sheep, they could not have been long away from Bayly's yard, searching, i Now as yoi will see:— 1. Apjiliby saw the sheep in thei "hoir4 ,paddock." 2. He "jlmitted having placed his moi/if sheep in Bayly's yard. • 3. • He says Wood left him (at the yard of course, because he was then) to search for missing shew. This .hears upon the conversion Wood had with Mr. Barrja. The sheid having been mastered on this' Sundi-' morning, Bayly did not identify M sheep, as' they, were ewes with laiK which Bayly's were : not. Now wJißer the sheep Bayly had seen late in B afternoon of the previous day hadflen put aside I cannot 3ay—at all Hnts, Bayly told Wood he would Iho have another look through the sheflhe had seen there the day reply was, to say the least, in the circumstances. He looked through them 'do not want to. see them agM?" 'Bayly, pressed, and thai sheep well brought in. Bayly then caught aigaeep that he had purchased from Hine 'in September last. Wood had purchased it at Douglas, but from whom he did not know. Bayly then) picked out another eight wethers, which -with the ram, and God- . kin's, made ten. These sheep Bayly claimed as lis and demanded that they should be i'ept to themselves. Some earmarks rkently made were coated with coaguiited blood. What can you think' of knowing all the time ■ that the sleep were Bayly's (for be had told Nffria he knew: they were his) not at one admitting Bayly's ownership, and naking a -frank explanation 'a# to how le had .obtained them? Wood purciased them at Douglas is, course, a 'celiberate. untruth. On April 26 the thi?e Baylys, Kendall, and Detective Bojdam proceeded to Wood's farm. Anther muster was demanded, j Nine of th<; ten sheep previously picked out were tfere, one of Wood's being substituted fo;r the tenth sheep; and a further nine vethers were also indentified by Mr. Batly. Why the one sheep was anl Wood's sheep substituted I cannot say Wood repeated the old, old story. that he had purchased them at Douglas, T'l that he had earmarked them (the nineteen) on the Wednesday and fhurxlay after the Tuesday he bought than. Bayly then marched these nineteen to his own place, and placed the: iinder lock and key in his wool'shed. They were tar branded and ultimately taken to Stratford for safe keeping. 'These sheep are now for your inspection Whereas when in Bayly's j home ,pad"ock on April the wethers were, fat; now, vith the Ibuffeting, they are in poor condition. The earmarks, however, wi|l spea' for themselves. Now before the slieej-; were removed Wood said to Mi 1 . Bayi,', "Mr. Bayly, if you takej these shejp away, will you go any. fur-, ther in it-he matter?" Bayly replied f" t wasjliis business. This question, in j ,y of ill that had gone before, wasj vjry spelking. Detective Boddam, anHtelligmf. and experienced officer, will I Mve full /details of all that passed, and 3m will!tear from him and others what Se earritirks on the several sheep were jke: tb ft the earmarks had 'been recently made, that the marks were (Jirered u'ith coagulated blood, and how pod tried, but on his own showing ailed, to prove that the nineteen sheep J fere his. At last after denial upon

ienialiWood was obliged to admit that ;he sheep Bayly claimed were not of ;hose he (Wood) had bought at the Douglas sale, and they had not the earmarks of the several vendors at that sale. In what form was this admission madefl Wood admits that he did not

purchase' at auction sheep other than those,'in Mr. Webster's invoice. Jie'an*o ladiiife that Bayly's sheep were distinguishable from and had not the earmark* of those sold to him. I shall produfce before you the several owners of tlijK sheep sold to Wood at the auction. They will tell you that Bayly's sheep) were none o£ theirs that were sold. You imay say it seems perfectly clear that, j when Wood landed these sheep at his yards he must have known that. Bayly's" sheep, which were amongst them, had ,i4ot .been bought by him. That he possessed that knowledge is clear from the ■fact (of him having told Norris the sheep were* Bayly's. Wood, by saying the sheep were Bayly's, was evidently acquainted with Bayly's earmark. With that what was Wood's duty as nh honest man? There can he hut one ! answer. Admitting, as indeed Woofl at last admitted, that he had not

purchased the sheep at the Douglas salt-, we ask, "Where did he get them?" Tu:u ho and Appleby took' them from Bayly's "home paddock" must be the answer,"in face of 'his statement to Norris that the sheep were Bayly's, and that they did not form part of the lots offered at the auction. Now, what does Appleby say? He admitted to Bayly and Boddam tin May 6 that he on April 5 had driven sheep from Bayly's "home paddock." His explanation was that some of Wood's sheep had got out of the yards into the paddock. Upon being asked how they got into the paddock, he replied they pushed open the gate A, and Bayly would say most probably also gate 2, shown on plan B. This answer conveys much; it proves that the gate A must have been closed and not open when the two young Baylys left ttte home early on the morning of April 5 Howard to muster, Oscar for Stratford. It proves also that Gedge was correct when he said he had seen Appleby driving sheep towards the wool shed. If you are satisfied that sheep could not have opened that heavy gate (hung as it was with wires), opening as it does, and did, inwards and resting upon the ground, it proves also that it must have !been opened by Appleby or Wood. It was absolutely unnecessary to open gate A, for, as I have told you, the "holding yard" alone would hold some 2000 sheep. It may foe, as I am instructed that the accused's counsel will endeavour to prove that Bayly's sheep escaped under the raised fence (shown on the photographs)—a fence erected over swampy land. As I have gajd. that cannot ,have be fn the cafse t vegetation o» either' BWt'bl tlie fence on April s'was considerable; it had not .been disturbed. Rotten logs were under the fence, and these rotten logs showed no sign, and have not shown any signs of having been skinned or touched. Now, and for a little time past, witnesses will tell you that appearances justify the conclusion that some one, for purposes of his own, had trodden down the vegetation, and thus the character of the ground, 'both inside and outside of this raised fence, 'has been changed from what it was on April 15. But even if Bayly's sheep had escaped under the raided fence, the escape must have b»en effected between half-past ten, when Oscar saw 15 of his father's sheep in the "home paddock," and 12 o'clock, when the mob Appleby drove were placed in Bayly's yard, and when no one was in the house. If the sheep escaped through this opening Appleby would, in all probability, have seen them get out, and' having seen them,, he and Wood should have advised' Howard Bayly and Kendall, so that the drafting of them from their own mob could have been effected in .Mr. Bayly's . drafting yard. Again assuming for the sake of argument, the sheep escaped under the raised fence, it is scarcely possible to believe that either Wood or Appleby would, not'have noticed them, either in the road or in Bayly's yard with their own mob. In either case, if Wood or Appleby saw Bayly's sheep intermix with their own, and under circumstances that would suggest Mr. Bayly being the owner, and if without inquiring from • Bayly j as to his ownership, they drove them j away, earmarked them, and generally assumed ownership, they would be I thieves. Now much more would they, or one of them, .be thieves, if Wood [knew—as he told Norris he did know—that the "bonnie. wethers" were Bayly's, and if he also knew, as he must have known, that those prime sheep had not been purchased by him at the Douglas' sale.. As I said, and will repeat, the evidence shows that' gate A had not been opened by the Baylys after Mr. Barleyman had used Mr. Bayly's dip, towards the end of March. But, however, apart from the fact that as Appleby ■ says the sheep opened that gate, and as that was impossible, we can ,but assume that he himself opened it. . .—-'"\ ' of course you can understand that in the Police* v Court> it frequently is the case that an accused reserves his defence when he sees a committal is imminent. Yet, while that is so, learned judges in England, and I believe in N,ew Zealand also, have remarked "that if the accused did, nr>r ■exercise at the preliminary inquiry liitA right to give evidence, and was contenlj there to reserve his defence, the value, of his evidence at the trial in the Higher Court was thereby lessened." In tins case, as even no cross examination in the Police Court was had, we in respect of the grounds of their defence are left j to our imagination, and the expressions of the learned judges will be relevant and appropriate. It is not for my learned junior and me to press this or indeed any, criminal case. It is, however, my duty as Crown Prosecutor to see, in' justice to the accuser (the Crown) and the accused alikey that all the facts I know of should be laid, before bis Honor. and yourselves. I may or may not address you again, and'so let me say that while, if you think the case against both of the accused is not made out, you will act accordingly; yet if the" I evidence leaves no reasonable doubt .in your minds that a mean, cowardly, and contemptible act has been committed "by Wood and Appleby, or either of their, •by taking the sheep when the Baylys .were absent, you will not hesitate to siy so, leaving the rest to the learned Jud\re. I ask you in considering the guilt or. innocence of the accused to remerilrer that Wood was in E:v!y's sheep pen at/ 12 o'clock, that he hr.ded the sheep o»-j ; their way, to his farm, that he made an* j improbable statement as to how lie foef ■ came possessed of the "bonny .wethers,? and contradicted himself by admitting; to Norris that the sheep were Bayly'?, and told lies by saying that they yre.it? bought at the Douglas sale. Lie afU>r i lie was told by Wood as to how he "became possessed of the sheep Mr. Bayly claims as his. I should tell you-tpat Wood never mentioned being in Bayly's j yard until after both Bayly and Deifecj tive Boddam ascertained they were, by 'inquiry. Upon the facts we may proVe. His Honor will direct you as to the law 'in connection with the several counts in the indictment. I regret having had. to trouble you with so long an address, but the importance of the case from more than one point of view must be my exI plaiiation.

The first witness called for the Crowa was i ■■" ■ Thomas Gore Sole, surveyor in the employ of the New Zealand Government,, deposed t/hat oh 15th and 16th of May* he had made the surveys and drawn tha' plans (produced)) of the locality. From Bayly's stockyard and along the roa'd there was an unnterruptpd view of tlie homestead and part of the home paddock. A person driving sheep over, the greater part of the home paddock could be seen from the road by the stockyard. The witness fully described the locality, .the situation of the various yards, gates, and fences, as outlined in the opening address. Cross-examined by Mr. Spence: There were two swamps and a branch swamp in the home paddock. One would not be able to see into those dips from the stockyard. He was very emphatic that the gate leading from the holding yard to tihe backyard could not be opened merely by kicking it; the weight would ■have to be lifted. At the raised portion of the fence mentioned the post had been drawn clean out of the ground and was suspended! toy the wires. Logs had been foiled into the opening thus made.

f Louis Earp, photographer, in New Ply- | mouth, explained tne photographs produced in evidence. ■Sidney lycndall, shepherd for F. Bayly j at Tututawa, said the home paddock i was kept chiefly for a few horses and cattle and killing sheep. On the morn iug of sth April he put the hordes in the yard adjoining the paddock. There were between twenty and forty sheep in the that morning. The gate "A" on plan "B," leading from the front yard to the back yard, was usually closed, and ne supposed it was closed that morning. During the morning he and Mr. E. Bayly went to the back of the farm to muster s>me sheep, returning soon after noon. There was then a flock of sheep in the yard nearest the road and in the back yard, and there were two men with them. About live o'clock that night the killing sheep were all juissifig. As far as he could say, gate "A" had not been opened since. Barley man clipped hi» sheep at the yards, about Easter.

Cross-examined: When Wood, the ac- ' cused, made the remark to Oscar Bayly that "it looks bad for the hoy/' Bayly replied, "I wouldn't care to be either of you," or something of the kind. His number of the sheep in the paddoclf was purely an estimate. He was only half a chain from the yards when he saw the flock of sheep there. The sheep in the back yard would not be more than a chain from the house. Howard Bayly, of Tututawa, and a son of Fred Bayly, gajd. that he and his brother ©soar W practically managed his Mte'l .JEftim lor .the •££ t"e!V! months. Sis father- left the station on April 4th for New Plymouth. On the morning of April sth there should have been about thirty sheep, mostly wethers, seven horses, and a few cows in the home paddock. He did not see them there that morning. The wethers had a good deal of Lincoln in them, and they were fat, The accused, Albert Wood, was in the yards with some 400 or 500 sheep when he and Kendall came from the back on April sth. He supposed at the time that his brother. must have given Wood permission, for it was not Usual for men to take .possession of the yards without first obtaining permission. The sheep could have been accommodated easily enough in one of the yards. Wood was probably acquainted with Bayly's brands. Gate "A- was opened only when dipping or shearing operations were in progress. It would not swing open, because it was not on hinges. No animal "in'the farming line" could have pulled it,open, and no one could have pushed it open in the other direction without breaking the gate. Cross-examined: No one would suspect that sheep would have got out under the fence previously mentioned, from which the ground had slipped. As far as he knew, no sheep had got but there during the two years he had been out there.

[ In answer, to his Honor, Mr. Spence stated that he was not setting up as a j defence that Bayly's sheep could have ' escaped through this gap and joined [ W-od"= mob. f le was merely contradicting evidence that had been put forward by the .prosecution in the lower Court ! th£ t' Bayly's fences were quite sound. Th • defence h.id not known until after I the hearin" in the.lower Court that the Hiue was ■unsound.at this point, Neither did the defence place any weight upon the gate "A" opening only one way. It could be proved that the gate would open both ways. The defence did not pretend to show where Bayly's sheep could have got out. The defence would be an absolute explanation of all the matters that were stated to be suspicious. In further cross examination, the wit ness said that in every one of the sheep identified and brought into New Ply mouth, and which were now outside the Court, his father's earmark was still distinguishable, and in some eases it had not been mutilated. Wood made the I first muster without 'demur, but demurred on the He had not/heard since the hearing in the lower Court that' some' sheep bearing Bayly's, 'earmark, but nqt the vendor's earmark, were sold to 'Wttod.at the Douglas yards. ■ He did not hear Wood s?v to Detective: ' Bo'ddam, V 'W« do I kn.-r- if all the sheep had the vendor's earnw.;'"."" not?"| It-would bef a pretty difficult ma;' •* for a "ni'ftn chains away to distinguish forty or. fift>y good wethers in a mob-of 500.' He admitted that by lifting anu pus-feinsjjfhe gate "A" it could be made to jbpelri either way, but the gate never got, into that 'position in ordinary use. Hchdict not hear Wood say to witness' fatherl "If you're going ' further 'with' this. Ell retain these sheep," and he didn't hear Detective Boddara say, "Now, y'pung fellow, be careful, or we'll make a! criminal case out of this." i Re-examined by Mr. Westfn:- On Wood's iplace they picked out Bayly's j sheep fiom Wood's flock without refer- j ejnee to] earmarks, and made few mistakes. : ' ■ ' ■ "j / Herbert Gedge, a youth, deposed tfcat fin had met Appleby driving some shefep /'on the road near Bayly's stockyard, and '.four (hours later, when he returned, -Uippleby had his sheep in Bayly's yard, llater, he saw the man driving sheep out ojf Bayly's home paddook. His other Evidence was on the lines set out in counsel's opening address. ; J '-.To Mr. Spence: Appleby could hardly [ have held his sheep an/where else but m Bayly's yards to let witness' mob pass. ■Appleby told him he had lost some sheep the previous day and some that mornI ing. He picked up two of Appleby's ! stragglers, a wether and a ewe. Bayly | had been to Wood about his sheep before Wood learned from him that Applej by had been in Bayly's home (paddock 1 at all.

Robert Barron, a sheepfarnier at •Tututawa, who saw what sheep Wood bought at Douglas on April 4th, said that on the next day he saw Wood and others with a mob of sheep on the road. He was three chains away from the road. He was struck by the fact that the mob seemed in some way to have improved upon their previous day's appearance. He had thought Wood was exaggerating when he said lie had bought some "bonny wethers." If he were driving a mob of five hundred sheep of the stamp that Wood had bought, he would in the course of his journey detect if forty or fifty much better sheep appeared in his mob. To Mr. Spence: Wood bought wethere at Douglas, but they were close-woolled wethers, probably fifty or sixty. He didn't see any wethers in the yards that day that were better than the nineteen in dispute, and he would be surprised if anyone swore that Wood bought better ones. He would not say that nineteen sheep would make any appreciable improvement in the appearance of a line of 400 sheep. Ke-examined: There was a very considerable difference between closewoolled sheep and Bayly's sheep. By Mr. .Spence: He would be surprised to learn that Wood bought Lincolns at Douglas. Oscar Bayly, a son of Fred Bayly, and one of the managers of the estate at Tututawa, gave evidence that he left the homestead for Stratford at about half-past ten o'clock on the morning of April sth. When he went along the road he saw at least fifteen or twenty 1 sheep in the "home" paddock, and there was a mob of about 400 sheep scattered over a good length of the road. He rs-1 turned from Stratford early next morning, and in consequence of something he

heard he inspected the fences of the home paddock. No sheep had recently passed out under the raised fence. No sheep had ever got out of these as far as he knew. No sheep would go under of its own accord, for it was swampy ground. They communicated with his father, who returned to the estate, and on April 16th witness and his father went to Wood's place. His father said, "We've missed some sheep, Wood, and I've reason to believe they're amongst yours." Wood said poinfcblank, "I have got no strange sheep amongst mine." There were between 400 and 600 sheep in the yards. Witness and his father got over into the yards. They recognised a ram of theirs, and a sheep winch -Mr. Godkin had put into their place some time before. They caught the ram and asked Wood Where he got it, and Wood replied that he had bought it in with some cull ewes, but he couldn't see with which lot. Wood objected to them taking the ram home. With regard to Godkin's sheep, Wood said he had bought that from McMillan. Witness' father said he could swear to the sheep and pointed to the saddle on its back. Thereupon Wood said-he had bought it at Douglas. On the occasion of the next visit to the .place Wood looked very confused when witness asked where he had got one particular sheep that his (witness') father had bought from Mr. Ted TTine. The examination of this witness had not concluded when j;he Court adjourned at 6,15 p.m.

Tn reply to Mr. Spence, his Honor said (he two accused must remain in custody. They could not have their liberty for tto night. The Court resumes at ten o'clock tfafo morning.