RESIDENT MAGISTRATE'S COURT

Thames Star, Volume VII, Issue 2083, 7 September 1875, Page 2

RESIDENT MAGISTRATE'S COURT

THIS DAY. (Before W. Fraser Esq., R.M.) CHANGE OF FALSE PBETENCES.

Hyam Hart was charged that lie did at Shortland on the 4th instant, unlawfully by certain false pretences, to wit, by saying that a certain watch chain then being sold by auction was gold, obtain of and from one Samuel Ensor, the sum of £1 12s, with intent to defraud, he the said Hyam Hart well knowing that the watch chain as aforesaid was not gold. Mr Macdonald for defendant pleaded not guilty. All witnesses were ordered out of Court, on the application of Mr Bullen, and the latter then stated the facts of the case. He said defendant had gone to Mr Leydon and put in the chain representing that it was gold, and that it cost £6. The information was laid for a breach of 87th and 88th sections of the Larceny Act.

The first witness called was--

Samuel Ensor, who on oath deposed— That he was a publican in Shorthand. On Saturday last, 4th instant, he was in Mr Leydon's auction niavt, Pollen street. There was a number of people there. Mr Leydon was carrying on a public auction. Witness saw defendant come into the auction room and seemed to be in a bustle, fumbling about a bit, when ho said to Mr Leydon "I want you to sell this gold Albert forme." I think he took it from his waistcoat pocket. That was the chain produced. Leydon said to accused "Is there any reserve ? " He replied "No ; he was hard'up and it must be sold, fetch what it would." Leydon put the chain up to auction. While the chain was being auctioned, on two occasions witness asked the accused if it were gold, and he said " res ; it cost me £6 in London." Witness bid three or four,times, and the chain was knocked down to witness for £1 12s. Witness bid £1 12s because he really though the chain was worth three times the money. He thought so because accused informed him it was gold, and witness knew if ifwas gold that it was worth more than he bid. The chain was not gold. He paid Leydon cash down and got the chain. Witness had the chain tested aud then gave it to Detective Brennan.

Cross-examined by Mr Macdonald —I don't know that ever I saw tho man before. The first bid was 10s. Accused said he was hard up and that wff|, u tho reason he was selling it. I thought!!? was making a bargain out of his necessity. .1 would have taken it if it went fo^LOa, "*• Other people bid as well as mo.; >i;I bid a pound after some others had run i{ up. . Somebody bid £1 11s and I bid.jfil 12s. .Conditions of sale shown)". -I'did'seo that — couldn't say whether it was stuck up. Some one was near me when accused said the clinin was gold. They heard him say it. I hayernade bad bargains before.,, •• His AYbrship thought the thing would turn on a question of law, and; they might make the evidence short.

Edwin Jennings* carpenter^ deposed—> That he was in Mr Leydon's auction mart on Saturday and saw defendant bring in a chain to Mr Ley don. When he gave it to Mr Leydon he said it was a gold Albert. The chain was auctioned and knocked down to Mr Ensor. The latter asked accused if the chain was gold. He said it was and that it had cost him more than £6 in London—this was before the chain was knocked down.

John Leydon, on oath, deposed—That he was a licensed auctioneer carrying on business in Pollen street, Shortland. Had a public sale on Saturday last. During that sale saw accused. He handed witness a chain to sell by auction, saying when he handed it, "Will you please sell, this chain for me?" That was the chain produced. Witness r sold the chain by auction. The first bid was 10s and finally it was knocked down to Mr Ensor for 325. Got paid the money and paid it over to the accused. . Made a memorandum of the sale in his books. (Book produced and account sale read. The chain was called a gold chain). Witness said he didn't know why it was so call, d e'xeept it was a mistake. He didn't remember saying the chain was gold/but one gentleman asked if it was gold, and lie replied " You have heard the description ; if it is" not gold it ought to be." Witness couldn't remember if accused said the chdin was gold. By Mr Macdonald-Those conditions of sale (produced) were stuck up in the room —three copies of them for information of purchasers.. Detective Brennan received tho chain produced from Samuel Ensor. Saw accused respecting it. Accused said he knew the chain was brass, and he didn't represent it as gold. What he said was that it cost over £6 in London. Witness submitted the chain to one James Finlay, a working jeweller, to have it tested. .

James Finlay, sworn, deposed—That lie was a working jeweller, in Grahamstown. Brennan submitted that chain (produced) for test. Witness tested it by the usual tests. It was not gold—it was brass, worth about a shilling. This was the case.

Mr Macdonald referred to the charge and the false pretences alleged; namely that accused had said the chain was gold. There was not a.tittle of evidence to support the charge under the first section referred to, the S7th. All'the evidence bore out was, if anything—that accused's representations had only' enabled Mr Leydon to obtain the money. He made the sale in accordance with the conditions of sale. Mr Macdonald said he had been surprised to hear Mr Bullen refer to the 87th and 88 th sections of the Act, for while the charge was only .laid under the 87th section, the evidence all turned upon tho 88th.

The Bench referred Mr Macdonald; to the information of the Court.

Mr Macdonald said he had been depending upon that (producing the information on which the accused had been brought to Court). His Worship said it did not matter. The summons was not the information. If Mr Macdonald had been taken by surprise he could have an adjournment. Mr Macdonald read the information and summons again, and found that there was no difference. He resumed his defence, arguing that if the evidence supported anything it was the offence disclosed under the 88th section, and the facts did not bear out a charge of false pretences, and that his client, even if he had said sell me this gold chain, had used no words beyond these employed, which might be used in an.-exaggerated commendation cf his goods. His Worship said he was quite clear that it amounted to false pretences under the Act, but*looking at all the circumstances of the case, and the amount of latitude supposed to exist at these auctions, he would inflict a lighter penalty than he otherwise would have done, and sentenced the prisoner to 14 days' imprisonment with hard labour.

The Court then rose