SUPREME COURT.

Taranaki Daily News, Volume LV, Issue 245, 6 March 1913, Page 6

SUPREME COURT.

XE\V PLYMOUTH .SESSIONS. (.'I!IMIXAL •( 'A LEND All. Thr X"W I'lv in on l)i sessions of the ■Supreme Court were continued yesterhiy moi'iiiiiif before Mr. Justice Denniston. A LLE< i El) MJ S A PPR< >PRI" ATI OX. Two charges were preferred against ii middle-aged man named Frank White —'(1) Failing to account for the sum of ,C3i>: and ('!) with fraudulently converting the same to his own use. The accused, who pleaded not guilty., was defended by Mr. A. 11. Johnstone. The Crown Solicitor (Mr. C. W. Weston) prosecuted. The jury compri.-cd Messrs W. L. Dockrill. A. \V. Me I'.wen, W. Rowley, C. V. Russell. Bishop, G. IT. Herbert, •las. McLeod. \V. Lints, L. M. Monteath, L. Sarten. L. Tate and A. P. Lister. Mr. \V. liewley was chosen foreman. Clement Coldwell, a fanner residing at Cardiff, deposed that he first met White early in March, 1912, when he came in with an agent of the Ridd Milking Machine Co. to lmve a look at an engine which had "broken down. At that time witness had a Tangve engine in the shed, and. in answer to White, said that he would sell it for ;C2.3. Early in July White again approached him, stating that he had a buyer in Hawera. Witness said he wanted £3O for the engine, which after it had 'been put through a trial, White asked him what he would allow him if he gave him the purchaser's cheque within a week. Subsequently White wrote him a letter to the effect that A. L. Jennings, of Eraser road, would take the engine for .-C3O cash, and that his cheque would reach him within a week. Witness consigned the engine to Hawera on July IS, and a day or two after he received a letter from Mr. Jennings to the effect that some odds and ends were missing, and asking for terms. Witness replied stating that he could not trace the missing parts and stipulating that it was a caxh trail-action. He next met White at a sale oh August 28. when the latter said that he had got Jennings' cheque for £3O. and would give it to him in a day or two. As nothing was forthcoming witness wrote to White, who replied by wire to the effect that he would pay up in a day or so. To this day witness had not received the money.

To Mr. Johnstone: Prior to selling the engine lie had been told that White was in bad circumstances, but was in no way dishonest. White had never denied that he had received the money, and had repeatedly been given further time. White sent him a promissory 11 Die for the amount and witness also received a note from liim. His (witness') solicitors, some time before Christmas. put the matter in the bauds of the police, but they preferred not to take the matter lip. In consequence, he had taken up tin? prosecution himself. To the Judge: He had never authorised the prisoner to convert the cheque to his own use. A. L. Jennings, farmer, living at Tfawera. gave evidence of having purchased the engine from White, who said he had it his hooks for sale. Within a short time of his purchase he paid White £3O bv cheque. White said that be would give the same to Coldwell. This closed the case for the Ciwn.' The accused then gave evidence on his own behalf. He stated that he bad been a canvasser for milking machines, and resided at Eltham. He admitted having received and sold the engine 011 Cohlwell's behalf for £3O. The cheque was payable to him or order, and he had a perfect right to cash it in order to deduct bis commission of £2 10s. He changed the cheque with the intention of giving Coldwell liis money the following week. At the time he called 011 business to New Plymouth, and he had the money with him. He "made a mistake" there and got drunk. He was at New Plymouth for two days and a-half. and he could not say what happened to the money, which he discovered was missing from his pocket. He could not find the money, as he had a large family. To the Crown Prosecutor: Tie cashed the cheque at an hotel in order to pay an account for £l. He put £-21 10s away in his poc-ket. with the intention of paying bis principal. He would have sent a draft for the amount, but for the fact that it was his intention to visit Cardiff shortly and pay it over. While at \eiv Plymouth he stayed at the Terminus Hotel and then proceeded to Oakura. subsequently returning to Eltham. He spent none of White's money ill bis own expenses. He got drunk on bis own money, but he did not miss the money until the second morning. The discovery sobered him up completely, and be immediately set about bis business. He made no complaint, not knowing where he had lost the monev.

Constable McLean save evidence to the effect that he had seen the aroused the worse for liquor in Xew Plymonth about tlie date in question. On behalf of the prisoner. Mr. Johnstone said it was incumbent on the Crown to prove that the licensed had fraudulently kept the money and had fraudulently converted the same to his own use. The reference of fraud did not arise in this ease, and the Crown had not succeeded in establishing either of the two essentials in the, crime. The prosecution was a private one, and the cml side of the Court was still open to Cohlwell to obtain his money. . Snmming up. his Worship saiil that the facts were not in dispute, the whole case turning on the following questions: —(1) Did the accused receive f !ii' cheque for the purpose of forward iiiL' it to (old well: (2) did he, after receiving the cheque, appropriate any part of the proceeds to his own use? His Honor also In id stress upon the fact that the accused's story of having lost the money was never told to Coldwcll until after the criminal proceedings had been instituted. After an hour's retirement, the finding of tlie jury was "yes" on the second count, while in regard to the first count, thev announced that, they were unable to agree. The Judge accordingly entered a general verdict of guiltv. remarking that both counts were really the same. When the prisoner came up for sentence, Mr. Johnstone made a plea for leniency <m his hehalf. asking that the benefit of the First Offenders' Act he extended to him. TTe was instructed, he said, that his previous character was thoroughly good. Counsel submitted testimonials in support of this contention. His Honor remarked that, while he was always desirous of giving a first offender another chance, lie had made it a rule that if a prisoner chose to go into the witness box and tell falsehoods he should he precluded from probation. I'pon counsel making further representations and urging that White had a wife and nine children —whom he had aUvay.s supported -dependent, upon liiin, and thai immediately after his drinking bout at New Plymouth he had taken out ■j prohibition order against himself and religiously adhered to it. his Honor reconsidered the matter. Although it would mean straining the law somewhat, still, taking the special circumstances into account., he would direct that Whitt

slioiild lio ordered to come up for son- I fence wlii'i) called npun. Tliis was not tiie sake of (lie prisoner 'himself, Imt for those dependent, upon liiin. In: 'dentally, his Honor complimented Mr •In ;st<hic on his conduct of his case. prisoner was released, and an or. r iniule for the restitution of the in jsfy within twelve months. ALLKUKI) BREAKING AND ENTERING. A young man named Edward William Stockman, a resident of New Plymouth, was arraigned on two counts —breaking and entering and theft from Butler's dairy, New Plymouth. The prisoner pleaded not guilty, and was defended by Mr. A. J. .Johnstone. The following jury was empanelled: I<\ Mattock. A. Forbes, L. E. Hoffmann, Boulton, 11. C. MeEwan, W. H. Rowe, E. Harris. E. T. Allen, S. Marr, W. A. Benetiehl. E. A. Hawkins and J. Hurle. Mr. HoU'inann was chosen foreman. In opening the ease for the C'rown, Mr. C. IT. Weston submitted a plan of the locality of the premises and adjoining outbuildings, on which the offence was said to have been committed. Early on the morning of his arrest Stockman, so it was alleged, was observed on the premises, but made off before he could be captured. The missing butter was found in the vicinity, and when arrested the accused said he had been training on the ''Rec.," but, upon being quesi tioned. stated that he had been training ] by himself. Frederick Samuel Butler, dairyman, said he had been the victim of a series of thefts. He put the matter in the hands of the police, and a watch was set. On the morning of November 2!) (last Constable Smythe came to his business premises for the purpose of keeping watch. A box containing butter was left on the butter worker. It was then nine minutes past six. Before he left the neighborhood ho observed stockman crossing over Liardet street. Shortly afterwards he saw him going down Clill street, where he lost sight, of him. The knife produced in Court was the one he had found on his premises subsequent to the theft. To Mr. Johnstone: After he first saw Stockman he returned to the premises I and told the constable lying in wait 1 that he had seen the accused.

Constable B. Smythe described how lie secreted himself in Butler's premises on the morning in question, first placing 12 1 /, pounds of butter on the buttermixer. He retired to an adjoining room and about seven or eight minutes after Butler left he heard a noise as if the window in that room were being raised. Through a slide —raised about two inches —connecting the two rooms be saw Stockman in the machinery room. When he lost sight of him in the room he appeared to be carrying something. Witness then opened the door, subsequently passing through the boiler-room into the backyard. He could see no sign of Stockman. On returning to the factory he found that the whole of the butter had been removed, with the exception of one half-pound. Witness then wont to Wylie's boardinghouse, where Stockman was living, searching the premises in vain. Subsequently, about 1(10 yards from the boardinghouse, he saw Stockman come from behind an old shed in a vacant section. He approached Stockman, asking him what lie was doing. The latter replied that he had been in the closet. On being charged with the theft, the accused said, "I think you are making a mistake. T' was up in the Rec. training for a race." In company with Butler, witness found six pounds lying belling some milk cans in the machinery room. The balance of the butter was also found later on. Later on he and Constable Egan found footsteps leading from the back of Butler's to the dividing fence. One of the footsteps was made as if the person trespassing had been wearing a boot without a heel. He examined the accused's boots and found one without a heel. To Mr. Johnstone: The accused was something of an athlete, and when arrested was wearing football boots. Witness repudiated the suggestion that when he saw the man in the room he was excited and refused to state how many burglars he had seen at work in his time, remarking, however, that he had "seen a few." Evidence was also given by Constable Egan as to the discovery of footprints in several of the adjoining sections to Butler's. Witness also deposed that Stockman had told him that he was not training on the "Rec.," but on the road. tn his address Mr. Johnstone said that there was a possibility that the Constable, expecting Stockman to appear on the scene, fell into the error of identifying the thief with the accused. Counsel also cust doubts 011 the efficacy of the position in which the Constable was in for observing the man in the next room. Tt was presuming too much to place much reliance on the footprints as a method of identification. Anyhow, what object had Stockman, a young man, single, and living in lodgings, in stealing 121bs of butter? What could he possibly do with it?

Summing up. His Honor said that in this case thorp was both direct ami circumstantial evidence. PRISONER SENTENCED. After two hours deliberation the jury returned a verdict of guilty. Asked whether lie had anything' to say, the prisoner replied: "I don't want to be sentenced. I am only a young fellow. I have a mother in Auckland to keep." His Honor was then handed the Probation Officer's report, and after perusing it lie remarked: "I am afraid it is an unsatisfactory report. The accused had better see it." The prisoner perused it. his only comment, .which was made through his counsel, being "that he had no key as referred to ill the report." Commenting on the report. His Honor said that it was pretty clear that there must have been other thefts of butter. The Crown Prosecutor: There has been a systematic scries. His Honor asked where the butter had gone to. Somebody must have disposed of it. The Crown Prosecutor: There is a suggestion made, Your Honor, that it went to the lioardiughouse. His Honor: That is quite likely. I am always reluctant to send a young man to gaol for his first oll'cnce. If your character had been good. 1 would have given you another chance. The report is exceedingly unfavourable. Them are suggestions 'which you don't deny. However, T will give you a very short term, but you must remember that mi any .subsequent occasion it will be substantial. You are sentenced to four months' imprisonment.