SUPREME COURT.

Taranaki Daily News, Volume LIII, Issue 334, 22 June 1911, Page 7

SUPREME COURT.

NEW PLYMOUTH, WEDNESDAY. (Before liia Honor, Mr. .justice Edwards) The Supreme Court criminal sessions resumed yesterday morning. I'URGERY AND UTTERING AND THEFT, George Delaney, a young man, was charged with having at Eltham, on or about May 31, forged a cheque for £l2 10s, drawn on the Bunk of New Zealand at Eltham, and purporting to be signed by W. A. Cleaver, and, knowing it to be forged, that he dealt with the cheque as though it were genuine, obtaining from the Eltham branch of the Melbourne Clothing Company certain goods and cash amounting to £lO 18s 6d. As an alternative to the charge of uttering he was charged also with obtaining ttie goods and cash by false pretences. Mr. C. H. Weston prosecuted, but the prisoner was unrepresented by counsel, he pleaded "not guilty." The following jury was empanelled: — John H. Re veil, Robert Barlow, George A, Colson, Wm. H. Mnkwater, A. H. Palmer, Fred. H. Jackson, Spencer D. Pope, James McGee, Wm. Groombridge, Robt. J. Deare, A. E. Golding and C. H. Sprosen. Mr. Jackson was chosen foreman.

Frank Coward, a grocer's assistant in Mr. Walter's store at Mangatoki, stated that on May 29 he was in the shop when accused came in. He had known the accused well by sight but not by name. Accused drove on a butcher's cart far a Normanby butcher. Accused asked, "Is the boss in?" Witness replied that he was in, but was busy. Asked if witness could do anything, accused said, "I want to know if the boss would let me have a blank cheque." He spoke to his employer, and told him the cheque was for the Normanby butcher. Walters gave him a cheque, and he gave it to tlie accused, who tendered a penny for it. The cheque was on tile Bank of New Zealand at Eltham. About a week later he went to the Eltham police station and identified the accused .rom amongst a number of others. He had' seen the accused fairly regularly, about twice a week for five months before.

( George Thomas Walters, a storekeeper, residing at Mangatoki, gave evidence of Coward receiving a cheque from him. | He produced the butt of his chequej book, the butt of one cheque bearing the I pencilled words, "Sold to Normanby butcher." The number on the block correspondent with the number on the cheque produced.

..Charles Clement Gave, manager for the . Melbourne Clothing Company at I Eltham, said lie remembered that at I about a quarter past five o'clock on I May 31 a man came to the shop artd presented a cheque to the assistant, saying he wanted some boots and other goods. He himself attended to the customer. and received the cheque produced. He sold a pair of boots, a sample pair of the "Forbee'> brand, with detachable heels; shirt, sox and tic. The shirt had the firm's private mark, which ; had been put on at New Plymouth, a Zealandia tag, and a tag bearing the words, "Made expressly for the Melbourne Clothing Company, New Plymouth. Stratford and Elfliam." There was also his private mark, an inverted "C." He was positive that the accused was the man who gave him the, cheque and got the goods. The goods' produced were the goods he sold, the shirt still bearing the two private marks, but the tag was torn away. When he next saw the shirt it was on the accused, who said he had purchased it in Ilawera. lie gave the prisoner change amounting to £lO 18s 7d. The accused endorsed the chequer, "J. Condor." He paid the cheque into the bank next morning, and it was returned i to him marked, "Signature unlike." He immediately placed the matter in the hands of Constable Wade. A few days later he went to Normanby, and identii lied accused as he passed the hotel on a butcher's cart. Constable Wade then arrested the men.

Cyril Cutten Oarncross, ledger-keeper in the Bank of New Zealand at Eltham, gave evidence that the clip<pio produced was paid in liv Mr. Cave. and the toiler passed it to him for identification of signature. lie took it to the manager, and on hit; instructions returned it, marked. ''Signature unlike." Two men bearing the name of Cleaver banked at that bank—\V. A. B. Cleaver and li. C. Cleaver.

William Archibald Hush Cleaver, a fanner, at Matapu, when shown the cheque, said the signature on the cheque was not his. He had met accused when on McCoy's butcher cart and had paid McCoy 011 one occasion through the accused.

William Abraham Cleaver, of To TCoti, storekeeper, also swore that the signature on the cheque was not his. He did not bank at Eltham, but at Hawera. Constable Wade, of Eltham, gave evidence tlmt he arrested the accused at Normanby on June <i on a charge of forgery and uttering. Mr. Cave had been placed in a room, and requested to identify the man if he could as he drove past. When accused's cart went past Cave said, "That is the man that gave me the cheque." When arrested, the iiiim said he bail never been in Eltham in bis life, and, when shown the cheque said he had never seen it before. Cave said, "Tie's wearing the tie and the shirt now that T sold him." Uelaney said he had bought the shirt in Hawera, and, while not, knowing the name of the shop, said lie could point it out. Accused was told to take oil' the shirt, and Cave found the private marks there, but the tag had been torn oil'. Me then searched accused's whare and the house he was going to occupy, but could not find the boots.

Constable G. A. Hadler, stationed at Norinanby, said he searched a whare that haii been occupied at Normanby by the accused, whom he recognised, lie found a pair of socks or. a bed amongst a lot of old clothes, a pair of boots secreted between the ceiling and the roof, and there was also a pair of spare heels. Two boards had been left od" the ceiling for the purpose, lie believed, of keeping the whare cool in summer. The whare belonged to McCoy, the accused's employer, and he bad seen Delaney occupying it. The accused gave evidence on his own behalf. He said that a fortnight ago, when lie came in to Nonniuibv from bis round, Constable Wade arrested him. The constable showed him a cheque and he told him he hadn't seen it liefore. Constable Wade, Detective Hoddam, and "the man from the Melbourne" searched bis whare, but conhl find nothing. They searched his private house, and found nothing there. Then, when he hud been imprisoned on remand, the constable told him they, had found his boots. His Honor remarked that there was not much in that. "You need," he said, "to satisfy the jury that you didn't buy a cheque, that you didn't fill it in, and that you didn't get the goods from Cave."

The accused said that in the first place the other butcher had been accused, and when he denied knowledge of the business, the witness Coward said, "Well, it must have been the man with the tandem." "That," added the prisoner, "was me."

Ills iW.iinr: Do you mean to say that the man didn't give you ttie cheque? Accused: That's what I'm trying to say.

Addressing the jury, His Honor said this was a very plain case. The accused hail been identified !>y a man who knew him and had been in the habit of seeing him frequently, although, as 'was • frequently the ease, he did not know him by name. And Cave, too, had identified him, and had done so all through. If the jury found it possible to disbelieve these men they would acquit the accused. The jury was out for ten minutes, and returned with a verdict of guilty on all counts.

Mr. Spence said he had been instructed by accused to apply to have the provisions of the First Offenders' Probation Act extended to him. He had been before the court on minor charges, but not on any serious charge. He did not know that it could be taken as a plea for leniency, that the accused had intended to be married within a lew days of the date of his arrest.

Mr. Spence said lie was not aware of the nature of the probation officer's report.

His Honor said his account was not a clean one. Of course, he. could not try him on suspicion of taking other people's money, but there remained the fact that a previous employer at Marton and his recent employer at Normanby had, after his leaving them, discovered discrepancies in their cash. He was not satisfied that this was a case for probation. Probation was for people who had given way to sudden temptation. Prisoner was not of these. This crime was deliberate. He ordered the accused to be confined in the NewPlymouth'prison for reformative treatment for a period not exceeding twelve months.

ALLEGED CATTLE STEALING. Albert Edward Madgwick pleaded not guilty to a charge, of having at Rahotu, on or fibout October 24 last, stolen four head of cattle, valued at £32, the property of Euphemia Dew. Mr. C, 11. Weston appeared for the Crown, and Mr. R. Spence for accused. The following jury was empanelled: W. C. Elliott, G. G. M. Russell, F. H. Robertson, A. J. Kibby, Ernest Clarke, J. H. Lake, A. E. Nathan, 0. N. Firth, John Grooby, R. W. Sinclair, Wm. Seamark, Jervis George. Mr. Firth was chosen foreman.

Mr. Spence exercised his full right of I challenge, and the Crown Prosecutor ordered three to stand !by. ' Euphemia Dew, settler, residing at the Tepoko road, where she had a section of '284 acres, deposed that she also had a section of 99 acres on the Kahui road. Accused jqined her service on July 8, 1910. She had engaged him as a general farm hand, at 30s a week, and found. He sold cattle on three occasions for her, and these sales were by .public auction. She chose the auctioneer, and he merely drove there to the yards. He had no authority to take cattle to the auction without her instructions. The proceeds of the sales of cattle were paid into her account by the auctioneer. The accused had on three occasions to buy cattle for her, but ivas not allowed to but' cattle for her as he thought fit. On Bth October lie went to fetch some springing cattle from her bush section, and when he returned that evening he said six cattle were missing. She asked if he had looked for them, arid he said he had looked everywhere. Next day she sent her daughter up to the section with him, and on their return he said that he had found the cattle in a corner. On 9th October he told her he was going to leave her employ, but tlmt he would stay until she could replace him. She got another man in his place the same day, and Madgwiek left on the following day, returning four or five days afterwards for his clothes. She had not settled up with him, pending receipt of an account from "the ; Pungarehu Co-operative Store for goods I purchased by him on her account. Madgwiek told her that he had spoken to a man named Greenway about some ' store cattle for sale at £4 a head. She | told accused she was not going to sell her store cattle now, but would keep them till the middle of November. She had already written to the manager of the New Zealand Loan and Mercantile Agency Co. at Opimake to the effect that Fred Kirk, her present employee, would Hiring them in before the 20th Xoveinber. Madfiwick said, "Very well, I have left your employ, and it's got nothing to do with me." During that conversation nothing was said about any particular cattle, and there was no mention of the cattle that Madgwiek subsequently sold. She settled with Madgwiek on 4th Xovember, givirig him a cheque for £2 i i», the balance due to him. He said nothing then of having sold any cattle for her. Later, she found that four cattle were missing from the Kahili road section, and she advertised for them. On 4th December she went to Green way's farm at Puniho, auout seven miles away, and found one of the missing cattle there.

At this stage Mr. Spence admitted, on behalf of tlic accused, that lie took tlie four cattle from Mrs. Dew's section uml disposed of them. The matter lo decide was whether .he then acted under authority from Mrs. Dew—or honestly believeii he had such authority—or not.

Witness continued: The Kiiliui road paddock was reached through a gate, which was locked with a lock and kev.

The man in her employ always hud that key. Madgwick returned it to her when he left, and she gave it to Kirk. Cross-examined by Mr. Spenee: About ten years ago accused worked with her husband. She did not know his name then, or anything about him. Before selling cattle she usually discussed the ruling market, price, etc., with her employee, and his instructions in selling were to get near that price or to bring them home. In buying they had the same arrangement, the accused having

a certain amount of discretion. Cattle to lie sold were brought from the Kaliui road paddock to the home farm, and she and her daughter would select them for sale. They didn't have very big dealings in cattle. She had nevei known any of her employees to open the gate by lifting it oil' its hinges. She did not believe that I'epperill, a former employee, left the key at home

on the day that ho took Madgwick to the paddock, and had to lift the gate in this way. On Sth October Madgwick and liookes, her nephew, were up at the K;ihui road paddock. If Madgwick had Kaliui at the place that day show-

ing him cattle that he alleged were for sale by her, it was entirely without her knowledge or authority. ' That was the day on which six cattle were said to lie missing, and she could not understand how he could spend all day on the paddock and not find the cattle.

When Madgwick returned he was very mucli the worse for drink, and gabbling a lot of stull' that she eonld not understand. There were some logs and a little scrub on the "JO acres. When Madgwick left her he went on to another farm only five or ten mimit.es' walk away. It was a failing of hers to give people a cup of tea when they called, but on the 15th. when he came for hi-; clothes there was no tea "on," although accused said there was. She did not on that occasion suggest that he sliouUl continue to buy and sell for her. He was again much the worso for liquor, and in a very objectionable

state. She understood that accused on that day had a look at a cow that he had bought for her at Gray's sale, but this was not at her request. She sold about half a dozen store cattle after this. On 23rd October lleke Martin came to her place on other business. He asked if she had any store cattle for sale, and she told him that she had none. Martin said that Madgwick had asked him to go up to her bush section to look at some cattle tnat she had for sale, and he (Martin) had thought it as well to see her first and ascertain if this were right. She repeated that she had no store cattle for sale. Her daughter and Fred Kirk (who succeeded Madgwick) were present at the time. The Court adjourned for luncheon. Re-examined bv Mr. Weston, witness said the market value ef the four cattle when Madgwick sold them was £6 a head. As milking cows they were now worth £lO each. She could not remember the date on which Madgwick sold 19 head of cattle for her at the Rahotu sale.

Fred Kirk, farm laborer, at present employed by Mrs. Dew, said that on October 13 he went to the Ktihui road section and saw 28 head of cattle there, including the four in question in this case. On the same day Madgwick came to the farm for his clothes. While lie and Madgwick were looking at a cow ■which had just calved, Madvyick said to him, "Will you tell anyone if I tell you something." Witness replied that it depended on what it was. Madgwick replied that Mrs. Dew had asked him to sell some of the store cattle at the bush section, and he had a' buyer for them before he left. Greenway was coming on the 14th to look at some of these, and his price was £4 5s per head. Madgwick said. that if Greenway did not take them at that price he had nothing further to do with them. Witness replied, "Well, if Mrs. Dew has asked you to sell her cattle it lias ndthing to do with ine. At least, it might have something to do with me later on." A week or two later lie saw accused on the. Main road, when Madgwick said that Gilhoply's bo,y had, seen some of Mrs, Dew's cattle on the Parihaka road. On November 7 witness found, that the four cattle were missing. ' JTie gate was locked, and the, fences were in good order. Mr. Spence did not cross-examine. Elizabeth Dew, daughter of Mrs. Dew, testified that on October 8 Madgwick said that six cattle were missing from the bush section. On the next day witness went to the section to take a ; list of the cattje there (the list was prodded). Witness was present when her mother settled up with Madgwick on November 4. At that interview nothing was said about selling cattlo. I Cross-examined by Mr. Spence: Sho mentioned to Madgwick that some of the late cattle would be picked out and sold later on. Frederick Kahui said that on 24th October Madgwick asked him to come up the road for a ride, saying he was going to get some cattle down for Mrs. Dew. At the gate accused jumped off his horse and said something about tho key having been left behind. At accused's request he got off his horse and helped him to get the gate open by lifting it off its hinges. Prisoner sorted out four* of the cattle in the paddock; and drove them on to the road. Up to this time nothing had been said about a bargain of any kind. When they were close to Rahotu accused asked him what he would give for. the cattle, and said he was selling them on behalf of Mrs. Dew. Madgwick asked £l2 for the four. He got them for £9, but had also to pay Manu .lOs. Ho got a receipt for the money, which witness borrowed from Dan Rothcry, promising to repay it two days later. Witness sold the cattle to Heke Martin next morning for £l4. He gave the receipt to Constable Kelly later on, and three or four days after that Madgwick came to him and asked hijn to alter the receipt so as to make it a,ppear that the price of the cattle was £lO, and that £7 was still owing. Witness told him ib was too late, for he had already made his statement to Constable Kelly. He further said to Madgwick, ''You say you have got permission from Mrs. Dew; stick to that." On the day of the hearing of the case at Opunake, Madgwick came up and said to him, "Don't forget what I told you in Rahotu." Witness said, "What's that?" Madgwick replied, "You know." Then witness said, "You told me several tilings in Rahotu, which was it?" Accused said, "About the £7. That's the only thing that will get me out of it." Billy McLeod was with him at the time, and he said to accused, "Does Kahui owe you the £7?" and accused answered, "No." McLeod then pulled witness away, saying "Leave him alone." Cross-examined by Mr. Spence: When they drove the cattle down the road he thought accused was still in Mrs. Dew's employ. He remembered looking through eleven of Mrs,. Dew's cattle at Hemingway's yards, in company with Rookes and accused. But he thought that was in July, not on October Bth, as suggested by counsel. These cattle were a mixed lot, the culls from the bush paddock. Accused asked witness to (buy them, but he would only offer £3 10s, whereas Madgwick wanted £4 ss. They made np the deal at the Rahotu hotel, and they spent the evening

there. He couldn't say how many drinks lie had—it .might, .have been twenty and it might have been two—and he didn't know what time he left, but probably at closing time. , i. Re-examined: Accused went all over the paddock on October Bth with a dog, but said nothing about sis cows being missing.

Manu Mitchell, a half-caste, a farm hand, -of Oaonui, remembered meeting Madgwick at Rahotu on October 24th. The latter told him that he would give him £1 to go up to the paddock and get some cows out. They went to the paddock with Fred Kahui. Accused said something about leaving the key of the pgddock in his coat at home, and they lifted the gate open. Constable William Kelly, of Rahotu, remembered that on Ist December last accused called at the police station to see him and said, "What is this I hear about Mrs. Dew's cattle? They say* I stole them and sold them to Fred Kahui." Witness replied, "I don't say you stole them." Accused then made a statement and signed It in witness' presence. This statement was produced.

To Mr. Spence: He had not approached Madgwick at all. His statement was entirely . voluntary, and freely and frankly given. Alexander S. Rookes, nephew of Mrs. Dew, said he had been working for his aunt for a fortnight with Madgwick. Whilst there they agreed to go milking on shares with Gilhooley. In a fortnight they found the business wasn't paying, and witness dropped out, returning to Mrs. Dew. One morning in December, when he was taking the milk to the factory, he met Madgwick, who asked him to do him a favor; going on afterwards to mention that he wanted witness to take a cheque to Mrs. Dew. Witness said he didn't like to, and refused. Madgwick told him to ask Mi-s. Dew to come up for a cheque, or he would give it to witness next morning. He took the message. Mrs. Dew's reply was that she didn't want a ''go-between" between herself and Madgwick. The latter laughed, and said that was all right. To Mr. Spencc: Madgwick, when he engaged him, told him he was doing a lot of dealing for Mrs. Dew, and hadn't time himself to attend to the cows. Hence the need for extra assistance. lie remembered Mrs. Dew saying of one of the cows that it was a terror to kick, and that she'd have to get rid of it. He went to the Kahui road paddoek in July with. Madgwick and Pepperill, his predecessor, and on that occasion they had to left the gate | off its hinges. He wasn't surprised when Madgwick offered the line of cattle to Kahui. When he entered into partnership with Madgwick the latter asked him if he had any objection to his buying and selling cattle for Mrs. Dew, and he said he didn't care so long | as it didn't interfere with the milking 1 of the cows.

William Mo Lend, laborer, of Opunakc, remembered the day when Madgwiek was committed for trial. He was with Kahui when accused spoke to Kahui. He heard only part of the conversation. Accused said to lvahui, "Don't forget about that £7." He asked Madgwiek, "Does Kahui owe you £7?" Madgwiek said "So," and he then took Kahui away.

To Mr. Spence: He told the police that Madgwiek had said "Don't forget the £7 you owe me." This closed the ease for the Crown.

Mr. .Spence, in opening the case for the defence, said that the defence was that accused acted with the of Mrs. Dew, the prosecutrix. There might have been a misunderstanding, tout he would show that there was no felonious intent. There was no disguising the fact that from the moment the accused got to the hotel after the deal with Kahui his conduct was most reprehensible. He got dr\ink, spending sonic of the purchase money, and was afraid'to face Mrs. Dew and. admit his weakness. There was no doubt that the accused had retained money that he ought to have handed over to Mrs. Dew. lie was not charged with failing' to account for money, however. The accused, now of Awatuna East, said that he had worked for Mrs. Dew from July Sth to October 10th. He did the whole of the buying and selling of stock for her farms. She had in ,7uly about 1.70 head of store and milking cattle, heifers, etc. He looked after

the bush farm, and he had to decide what cattle sliould be brought in, and when, and what should be sold. As to the gate 011 the section, he, had lifted that more times than he had unlocked it. He entered in a book the names nf the cows, marking "to be sold" op.jwsite those that Mrs. Dew wanted to get rid of. He sold from 40 to 50 cattle for his employer during his term. The "bush" paddock was rough and hilly, and one wner was covered with fern. At bis muster on October Bth he failed to find m.v of them, and told Mrs. Dew of that. He found them next morning. He offered eleven cattle to Kahui on Bth October, and told Dew that he had failed to make a deal. Mrs. Dew tyld him that if he sold to a Maori he must flie sure and get the cash. He went to .Mrs. Dew's on the 14th for his clothes. Mrs. Dew helped him to liaek up. He had a cup of tea, and Mrs. Dew asked him, as he was leaving, to continue to buy and sell for her. He agreed, and told her he would do

that, charging only his expenses in the event of attending outside sales. He said, "What about Kirk? He ; mightn't Jike it." She said that he - wouldn't imind, >and told him to tell Kirk about it himself. He saw Kirk outside, and told Bim, Kirk remarking that it made no difference to him. The eleven cow* he had offered to Bishop, Greenway, Heke Martin, and Kahui, to whom he eventually sold them. He had a conversation with Kahui in the township about the cows before they went up to the paddock, and the cows were sold in the paddock, not, as Kahui said, at the hotel. After they got to the hotel it was suggested that he should "shout." He said he had no money, and Kahui said he had the £9. He replied, "That's not mine." Kahui said, "You can easily make it up," He hroke into the money, and they "goj. full." Next morning he had only £4 left, and being afraid to face Mrs. Dew he thought he would wait till he got hia factory cheque so that he>fcouli square up. Later, he went down see Mrs. Dew, who was ill in bed, and-, he had to talk to her , through. the opened door. Miss Dew brought hin a cheque for the balance of his w&get, and he went away. About Ist December he heart} that he was accuseds ol the theft of the cows, »nd he went to Constable Kelly and made the statement whichtihad been produced in court. Ho had since offered to pay Mrs. Dow the money, but it Was refused.

In the cross-examination, Mr. Weetoa drew the accused's attention, to the various points iii, "which his evidence was directly contradictory to tliat of the witnesses of the Crow#,

Heke Martin; of Bungarehu,. said be remembered Madgwiek offering to Mil Kim some cattle from ithe bush farm. They made an appointment 'for next morning, but missed each othetj and be went along to see' Mrs. Dew about it. He told her of the appointment and of Madgwick's failure to'keep it. ; Mrs. Dew said that as she had plerity of feed now in the top paddock she would fatten the cattle and sell them later. Mrs. Dew didn't seem to think Madgwiek was doing anything wrong, and didn't get at all excited or angry. Tutehoro Pakal Bishop, of Oaonui, farmer, also gave evidence that these cattle of Mrs. Dew's on the bush farm had been offered him by Madgwiek some time in October, after he had left Mrs. Dew's employ. Hp didn't jgo to see them, as the price asked was too big. They were worth perhaps £3 12s Od, no more.

.Mr. Spence addressed the jury for nearly half an hour, but Mr. Westjl did not address them.

(lis Honor said the jury had to decide whether the accused had authority from Mrs. Dew to soil the cattle, or, what amounted to the same thing, whether he honestly believed that he held such authority. His Honor remarked on the fact that accused offered the cattle to various people in the district, and then went in broad daylight to the paddock, ■sold the cattle, drove them away, and then appropriated the proceeds. Looking at the whole business, remembering that he was addicted to drink, that he did have some buying and' selling authority, also that he offered the cows to quite a number of persons in the immediate vicinity in an open way, ftnd had gone up in an open way with two people to remove them. His Honor said this business seemed to him the mistake of a man who had drunk too much.

The jury retired at 5.18 p.m. After the tea adjournment the jury returned to court to ask His Honor whether the accused expressly stated to each of the people to whom )ie offered the cattle that the cattle were the ■ property of Mrs. Dew. His Honor answered '"Yes." The second question was whether the value of the cattle at the time of the sale could be taken into account. His Honor answered, in the affirmative. He could not see any evidence of criminalty, but the jury was entitled to look \it it from their own point of view.

The jury, without retiring; again, brought in a verdict of "not guilty," The Court adjourned till this morning at 9.30 o'clock. TO-DAY'S BUSINESS. To-day's business will consist of civil nctions, no jury being required. The jurors are summoned for Friday morning at 9.30 a.m., .and His Honor lias announced his intention of sitting"'all night on Friday if necessary to conchide the business.