SUPREME COURT

Taranaki Daily News, Volume LIV, Issue 213, 7 March 1912, Page 6

SUPREME COURT

SECOND DAY'S SxTTING. The Supreme Court resumed its sions at New Plymouth at 10.30 o'clock yesterday morning before Mr. Justice Sim. A MISSING ACCUSED. Charles Blundell Lumsden, junr., failed to put in an appearance in answer to a charge of indecent assault. Aecused, who was out on bail, was not represented by-counsel. Counsel for the Crown (Mr. C. H. Weston) stated that as accused did not turn up on Tuesday the police made enquiries and discovered that he had not been seen since about February 10. His Honor issued a warrant for Lumsden's apprehension. There is one surety, and on counsel's suggestion his Honor decided to give the surety bolder, Ebenezer Wooldridge, of Okato, an opportunity to attend the Court on Friday morning, b»fore estreating the amount, viz., £SO. ALLEGED THEFT FROM THE PERSON. Charges of (1) robbing J. Mortenien at Waitara on January 20 of a metal watch and gold chain, valued at £3, and (2) of stealing the same articles from the person of Mortensen, were preferred against a sturdy-looking man named i William Ryan, with two aliases. Mr. C. H. Weston prosecuted, and Mr. A. H. Johnstone defended.

The jury comprised William Beadle (foreman), Arthur B. Bullot, Edgar H. Carter, Frank C. Robertson, Alfred M. Southam, A. F. Courtney, William H. Knight, James Julian, Daniel H. Bishop, Charles Skiprop and Arthur E. Winter.

The first witness called wa« Arthur K. Nash, proprietor of the Club Stables, Waitara. He deposed that he . and Mortensen were drinking together in the Club Hotel at Waitara on the night in question, and subsequently accused, Whom witness had noticed in the hotel with them, followed them into the stables, and stopping at the door as if he did not wish to be seen. Witness went down the stables, and shortly afterwards ,saw accused disappear into the office, which Mortensen had previously entered. Accused closed the door behind him.

THE FACE AT THE WINDOW. His suspicions becoming aroused, witness looked in at the office window, and saw accused, after hearing him ask Mortensen for a match, make two ineffectual attempts to dispossess him of his wa,tch and chain. A third attempt on Ryan's part was successful, accused transferring the watch to his pocket. Witness then called another man (Northcott) to the window, and they both saw accused put his hand in Mortensen's pocket—not the one from which he had extracted the watch. Witness then walked into the office and demanded what he wanted there, following this up with a thricerepeated request for the watch. This accused handed to witness, who then asked him if ..he had taken anything else. Ryan replied, "No," and witness told him to get out of the office as quickly as possible, and he was not slow to comply with the request. When his groom arrived witness sent for the police. To Mr. Jolmstone: He had not seen accused that day before he saw him at the hotel. He did not recollect having heard the barman refuse to supply Ryan with any more liquor. •Mr. Johnstone: How does come in that in the lower Court you said he got the i watch on the second attempt, and now you say it was the third?

Witness: It must have been a mistake on my part. lam quite sure he obtained it on the third attempt. A PASSAGE AT ARMS. To Mr. Johnstone: At the time of the alleged theft accused was a bit the worse for liquor. Mortensen was worse than accused. Mr. Jolmstone: Now, in your previoui statement you told them exactly the opposite. Now which is correct? Witness (after a long pause): Well, we were both slightly the worse for liquor. To Mr. Jolmstone: Accused did not speak to witness before he (accused) went into the office. . Thomas Northcott, farmer at Waihi was next examined. His evidence was" to the effect that he went into Lash's stables between seven and 8 o'clock in the evening, and he saw ,MoTtensen, Lash I and the accused come into the stable. Mortensen and accused went into the office. Lash was then sweeping up the stables and some time after he called him to the window. There he saw accused trying to go through Mortensen's pockets. Mortensen was sitting on a chair. Some time after, Lash went in and demanded the watch, which accused handed to him. Witness followed him Mortensen was drunk, but he did not think accused was in a similar state. He certainly walked away soberly enourfi when he was told to "get"

NOTHING VIOLENT. To Mr. Johnstone: He never heard Morteraen fall out, nor did he hear any struggle going on. When he went in the room Mortenscn made no complaint, neither did ho hear Ryan speak. There was_ nothing suggestive to his mind that there r ° blery had teen committe < l John Frederick Mortenaen identified the watch and chain stolen (produced) as belonging to himself. He was wearing it on January 20. Witness then detailed how accused had followed him into the stable office on the night in question, and asked him for a match. Witness put his hand a his pocket to oblige him and while in the act of doing this ac cused grabbed at his cham. g Witnes, pushed him a Wa y, but the second time' accused was too quick for him, eluding fus defence and succeeding in getting the timepiece. He did not remember aW ed putting his hand in his other pocket,. Subsequently;Kyan gave the watch up to Mr lash aftei . . three I IS T/- He had never ««" the amised before. Before the theft he L u °t [ IVD gksse9 of Jo Mr Johnstone: He did not remember the barman refusing to serve Evan Accused came in the office about a cou-' pie of seconds after witness, who went l ltl,ere f w »P««l. He was not .[ ting in the chair when accused toot the* watch from him. Witness did not make any serious attempt at resistance and •eroed made no attempt to get iway PRICING A WATCH.

Mr. Johnstone: How did you arrive at the value of the watch! It i s oX a .brass one, and y ot y o„ value Witness did not know Wei!, how mue h did you pay Witness: One pound. (Subdued laughWhat did you pay f or th e Witness : It belongs to a friend. Constable Lapouple said that in consequence of what he was told he arreted accused in McLean street, w"ta» Onbemg info dof the him, Ryan replied, "Well, let him te'l you all about it." The accused appear d to have had drink, but was ouiKable of looking a f ter himself l P To Mr. Johnstone: Besides other nrn

rebuttal. Addressing the Court, counsel said there was no tittle of evidence in Tegard to robbery with violence. The whole question was whether accused intended to keep the watch permanently to its exclusion from its rightful owner. Accused and the owner of the watch v.'ere in perfect harmony until Lash eame in. and there was no attempt on Ryan's part to evade the clutches of the law. Both the principal parties were more of less drunk.

Summing up, his Honor said that when a man takes property belonging to another against his wish the reasonable inference is that he wishes to keep it. Besides this, it had to be considered that Lash' had to ask accused three times before he gave the watch up, and a further fact was that not content with taking the watch, Ryan went through Mortensen's pockets. In this case accused apparently used whatever violence or force was necessary. The jury, if they thought fit, would "be justified in convicting him on the more serious charge of robbery. The jury returned a verdict of guilty of theft with a recommendation to mercy, and not guilty of robbery. Prisoner will come up for sentence this morning. ALLEGED BREAKING AND ENTERING. A PECULIAR CASE.

Charges of breaking and entering at Hawera on September 14 were alleged against a middle-aged Maori named Te Kira. The allegation was that he entered the warehouse of Walker and Nicholson, at Hawera, and stole two sides of bacon and six sides of him. Mr. C. Tf. Weston appeared for the Crown, and . P. O'Dea for Te Kira.

The following jury was empanelled •- William Nixon (foreman), Ernest Bisli-.

Edwin C. Foote, C. F. Dugdale, Mark 11. Barnitt, George Stewart, Albert Peterson, William C. Nixon, Wm. Roberts, Jolm • E.-' Avery',' Herbert Sinclair > Ralph Bullock and Joseph Swan. In an outline of the case, Mr. Weston said that there were three counts—(l) of breaking and entering; (2) of stealing, and (3) of receiving the goods. On the morning the hams were found to be mi*«ing fresh marks of buggy wheels, which had not beep there the previous afternoon, were.noticed in the yard of the factory. About half-past ten on the night of the theft accused had been pass-' .ed.by.a man (who would be called) driving in a buggy on tne road leadingf'tram the factory to the Maori pah., Oi' the following morning a policeman and. an interpreter visited the hut, at the pa!h where accused resided and found, one ham. 'When taxed with the theft accu's : ed tried to put the blame on another native, stating that at the latter's suggestion he followed him to the factory. He only took one ham home, he said. •

The first witness called wag Thomas H. Walker (member , of' .tb,e . firm of Walker and Nicholson), who said that on. the morning of September 15 he noticed that a, ladder had been put.up to' '4fhe' front door, and further 1 that:.a double door leading to the storeroom and another one adjacent to it had both been forced in; Referring to the l wheel marks, witness said that 'it' had:been raining heavily on the night his 1 warehouse was broken into. _7.i

To Mr. O'Dea: The warehouse I ., ( h ! act stock valued at about only fastening to the door when :i ari, entrance was effected was aj wooden button. It was not possible' that., a heavy gale could have blown the do'orin. He could swear that none of the. doors were left open that night. have been more than two sides of'bacon and six I'ttT"; missing. 4 Wm. J. Nicholson, another partner m the firm, also gave evidence as to a lot of 191 hams, which had been counted the day before, being several short. Percy Sowerby, an employee at the factory, gave evidence on the "lines of the two previous witnesses, and said lie had : noticed fresh wheel marks in the yard on the morning following the theft. A QUESTION OF IDENTIFICATION. John Casserley, a farmer living three or four miles out of Hawera, stated that on September 14 he left the town at 10 ; o'clock. On . home-he passed accused driving haphazardly in the direction of the pah. It was 'a dark night, and he could aot see Avhat he had in the

To Mr. O'Dea: He was not positive the man he passed was Te Kira. To Mr. Weston: He knew Te Kira before the night of the occurrence.

Michael Flannagan, police constable at Hawera, said that on September 15 last he executed a search warrant at a whare where Te Kira and his wife lived. He saw Te Kira's buggy standing by, and its floor and sides were besmeared with grease as if meat had recently been conveyed in it. He then saw accused and told him he was looking for some bacon. Te Kira said, "I was not at the factory last night." A native interpreter was with him and he said something to Te Kira in Maori. The latter's father-in-law came up and he told him he was looking for the bacon. Te Kira then said, "The only bacon I have is in the scullery." Witness went into the scullery and found a ham (produced in Court) witness asked him if that was one of the hams from the factory. He. •aid it was. Asked where the rest was, accused said that the other Maori (Te Awhe) had got that. Witness asked who the other Maori was, but accused said he did not know. He had picked him up at Hawera the previous night Witness then arrested Te Kira, and on the road in to Hawera acoused said that Te Awhe was the other Maori. To Kira added, continued witness, that Awhe accompanied him down to the factory for the purpose of getting some pigs heads which he had left there Te Kira drove into the bacon yard the other Maori" preceding him on horseback. When Te Kira arrived at the , door he saw (so he said) the other man throwing sides of bacon out of the factory /He then threw out some hams, le Kira then went in and got one ham and afterwards assisted Te Awhe to put all the goods into the buggy. When they reached a certain spot on the road Te Awhe (alleged Te Kira) threw all the bacon on the ground, and when it was all thrown out, Te Kira picked up one and said, "I am going to have one of these." At the police station he made a statement in writing, and it was on the lines of his verbal statement. To Mr. O'Dea: Ho knew accused had been drinking the night before. The greage 0 n the buggy was from some kind of meat; whether hams or not he could not say. I n t\ lo J)olice cell To Kira accused Te Awhe of being concerned in the theft, but the latter denied the accusation. Te Awhe's coat had greasy stains on it. The rest of the bacon (other than the ham) had never been heard of.

To Mr. Weston: He did not search Te Awhe's wham for bacon because Te Awlio did not go home. WHY TE AWHE WAS LET GO.

Counsel: What were your reasons for letting Te Awhe go? Witness: Well—no evidence. John Adams (native interpreter) said the constable (whom he aceompanied to le Kira's whare) told accused that he, had a search warrant for some bacon which had been stolen. Te Kira said he did not know anything about it. The constable went in search of the ham and accused remarked to Adam«, "The charge is a serious one—breaking and

entering." Witness replied, "The constable has not charged you with that so far." Accused then said that he had been drunk on the night of the alleged offence, not reaching home till the morning. Witness said it was better for him to tell everything and make a clean breast of it. Counsel: Your Honor, that is an inducement. His Honor: No, only advice. Continuing, witness said that accused added that in order to clear himself he would have to implicate somebody else, and that would not do himself any good. HE LICKED HIS COAT. To Mr, O'Dea: It was not usual for a Maori to go about by himself at night. They were afraid by themselves. He noticed the grease on Te Awhe's coat; m fact, he licked the coat, and thus found out that the grease had a salty : flavor.

Sergeant Griffiths, of Hawera, said in the course of his evidence that the reason why Te Awhe was let* go was because they could not obtain any evidence against him. The greasy stain on his coat was, in his opinion, caused through his carting meat from the butcher's. Henry Wills said that on the night in question a Maori called at his house, which was alongside the bacon factory, and said, "I am lost." H» enquired the way. Shortly afterwards witness heard other men, whom lie presumed to be Maoris.

Placed in the box, Te Awhe said he was with accused all day but not when he was supposed to go to the bacon factory. Counsel: How many drinks did you have ?

Witness: Between eight and twelve. • Counsel: Might not it have been more? Witness: No. Mr. O'Dea: Did you have pigs' heads at the bacon factory?

Witness; No. Counsel: Did you till Te Kira that?— 'No. '

Counsel: How did you get the grease on your coat? Witness replied that he had carried a bag of meat on the night in question from a butcher's shop. The bag was salty. TE AWHE CONTRADICTED. The story of accused was an almost complete denial of that of the previous witness. His version of the affair was that both he and Te Awhe had a lot of drinks together on the day of the alleged offence, and Te Awhe suggested that they should go down to the bacon factory.to get. some pigs' heads which he had left" there. Te Awhe added that he would give him some. They went to the factory, Te Awhe preceding witness. When witness reached the door it was open. He did not know how. Te Awhe then threw the bacon outside on the ground. They put it in the buggy and drove up the hill, where they unloaded it, witness taking possession 'of only one ham. The *est wag left with Te Awhe, and he did hot know where it,,went to. Witness added that he was very drunk. " Mr. Weston: You knew that you both were stealing! Accused: That is right. Te.Kira's wife was next put in the witness box, and said she was quite sure her husband only brought one ham home on the night of September 14. Addressing the jury, His Honor said the case was remarkable in that accused hdd given evidence that he was a Jialrty to tie . theft, but he said the hams were thrown out by another man (Te Awhe), and he only took one ham. The mere fact that he only got one ham did not exonerate him from the theft of the lot. It was only a question of convicting on the first as well as the second charge. The jury brought in a verdict of not quilty on the first charge (breaking and entering), guilty on the second chajg*. (theft), and not guilty on the third count (receiving stolen goods). • Sentence was postponed till 10 o'clock this morning.

ATTEMPTED POCKET-PICKING. An episode of the Hawera races was reviewed by the Court in the hearing of the allegation against Edward Saunders "that on February 7 he did steal from.the .person-of--John T. Radford a po'clce't-book and the sum of £52. The following jury was empanelled:— Frank Robertson, Alfred Rowe, Arthur Courtney, Alfred Southam, William Beadle, James Julian, Wm. H. Knight, Arthur B. Bullot, Edgar 11. Carter, Daniel H. Bishop, Lewis G. Nipper, Charles Skitrop. Mr. Wm. Beadle was chosen foreman.

At the outset, counsel (Mr. Q'Dea) for the accused raised the point as to whether the charge was in order, seeing that Saunders had been re-arrested at Hawera after having previously been discharged by the justices who first heard the case. Counsel quoted authority to show that unless there was fresh evidence after the first discharge a fresh examination could not be taken.

His Honor, however, held otherwise, and Mr. C. H. Weston proceeded to outline the case on behalf of the Crown. Radford, counsel said, was "shouting" for some friends round the bar on the racecourse, when he felt his pocket-book rise up in his pocket. He put his hand up and, turning round, saw accused, who had his hand, on witness' shoulder. Another witness would prove that he saw accused with his hand on Radford's pocket. Accused, when arrested, acted in a high-handed manner, alleging that he was a dentist at Wanganui, and further that the informants would be called upon to answer a civil action for suggesting that he was guilty of pocketpicking. John Thomas Radford, the owner of the pocket-book, whieh he said contained £53, detailed the alleged attempt on the part of Saunders to pick his pocket.

"LET THE SWINE GO!" Proceeding, witness said that when he found he had lost no money he turned to his friends and ejaculated "Let the swine go!" adding "I don't want any bother with him." With that someone in the »rowd yelled, "Run him in!" In the opinion of witness accused evidently must have had his hand on the pocketbook to lift it up. Taxed with the theft, Saunders repeatedly exclaimed, "What! you accuse a man like me? I'm a dentist in Wanganui." He repeated this statement to the police sergeant. Prisoner then demanded witness' name, asserting that he was going to "have the law on him."

To Mr. O'Dea: He did not feel a hand at all in his pocket. He felt a hand on his shoulder. He did not recollect having siiid at the first hearing that it was a friend's hand. He had two drinks before tfie episode—no more. James J. Johnson, farmer, son-in-law of Radford, who was one of the group in the bar, said that he was standing behind Radford. Accused approached Radford and put his hand in his breast pocket, at the same time putting the other hand over his shoulder. Witness then caught hold of accused, subsequently letting him go. Shortly afterwards he followed accused out of the bar, catching him up about fifteen yards from the building.

Mr. O'Dea: Did you sea the hand go to the pocket, or'into the pocket?" Witness: I am almost sure his hand was in the pocket. Counsel: You are, so to speak, just surmising that his hand was there? Witness: No, I saw two of his fingers fhere. Mr. O'Dea: Isn't it possible for someone to have bumped against Radford and

led him to think that somebody was try-\ jng to pick-pocket him? J Witness replied in the negative. j Mr. O'Dea: Do you remember that it the first trial you omitted to say you < saw the pocket T j Witness: Yes. Owing to the boisterous way in which you acted, I waß con- ' fused. But I now say that I did see the top of the pocket. Mr. O'Dea: Why did you not hand accused over to the police without, first letting him go? Was it not because you thought you made a mistake? Witness replied that doubtless he should not have let him go the first time. THAT "DENTIST" FROM WANGANUI. Constable Hadler deposed that when asked his name accused said he was Edward Saunders, a dentist from Wanganui, but afterwards, when Detective Siddles said that this was incorrect, accused remarked "I said Wellington, not Wanganui." Sergeant Griffiths said that accused had approached him on the lawn and asked him to give him the names of two men (Johnston and Radford), as he wanted to take an action against them for what they had alleged against him. To Mr. Weston: From enquiries he had ascertained that there was no dentist either at Wanganui or Wellington by the name of Edward Saunders. At this juncture His Honor interjocted that the fact that accused might have touched the pocket-book was not sufficient to prove a case of actual theft. The case that should go to the jury was one of an attempt to steal. The charge was accordingly reduced to one of attempted theft. Addressing the jury, His Honor Said that if a man put his hand into a, person's pocket with the intention of stealing, and there was nothing in it, he was none the less guilty of having committed an offence —attempted theft from the person. The jury returned at 5.10 p.m., and after a short retirement brought in a verdict of guilty of attempted theft. ] Prisoner was remanded until to-morrow for sentence.

DIVOKCE. HAMLYN v. HAMLYN. John Napier Hamlyn, who was represented by Mr. O'Dea, applied for a dissolution of his marriage with Lulu Undine Hamlyn, whose maiden name was Gibbons. James MeSweeney was entered us co-respondent. There was no appearance of either respondent or corespondent. ■« ■ According to petitioner, the parties were married at Patea on August 24, 1897, and lived together until July 28, J. 906, on which date respondent left her home in company with MeSweeney. She announced her intention of leaving the same day, and subsequent to her departure wrote to Hamlyn for some personal effects, which were forwarded to her. Petitioner asked, for custody of the two children of MeSweeney used to work under Hamlyn at a butter factory. Evidence was given by Joseph Irwin, of Auckland, who said he knew both parities to the suit. Respondent was, he s said, living with MeSweeney, by whom | she had had two children, at Auckland. ) He had interviewed both her and MeSweeney about the divorce proceedings, j, Nora Virtue, a nurse at Auckland, also testified that since she had been living with MeSweeney respondent had had two children. I

Counsel for petitioner intimated that the action for damages would not be proceeded with, and His Honor granted a decree nisi, to be made absolute in three months. Costs were allowed pe-, titioner.