SUPREME COURT-WESTLAND DISTRICT.

West Coast Times, Issue 105, 18 January 1866, Page 2

SUPREME COURT-WESTLAND DISTRICT.

CRIMINAL SITTHfaS. (Before His Honor Mr. Justice Gresson )

Wednesday, January 17 The Court opened, as usual, at ten o'clock. Mr Duncan prosecuted on tho pnrt of tho Crown.

OATTLE STEAMNd,

Joseph and John Cooper wero charged with killing an ox, on the 27th of November last, the property of Wm. Moffat, and with stealing and carrying away a portion of the caroaso. Peter Koller was also placed in the dock on tho same chargo, but tho Crown Prosecutor, boforo the case was gone into, applied fov his discharge, as ho intended to call him as a witness. His Honor thorofovo diiected tho jury to acquit Koller, and he was discharged.

Mr. South appeared for tho prisoners.

The prosecutor said ihat ho was a butcher, residing in Hokitika, and at tho end of last November ho had two bullocks in the slaughteryards which he lot out to drink ouo afternoon. In endeavouring to get them back again, ono, a largo working bullock, of a light red color, with wide cocked horns, got away. 110 thought it had also a white spot on its back, bnt lie remembered no othor mark on it nor any brand. The bullook had also a tar mark on tho back. Witness went in search of the bullock, but did not find it tho noxt day, but he heard next morning that it, had been hceii in* Tucker Flat. Ho sent two of his men in search of it, but they also ro'urned without finding it. Ho sent two other persons after this, but they woro unsuccessful in finding the nnimal, though onoof thorn, Hammond, broiiKht backapiccoofhido, rod, with alittlo whito. This roßcmbled tho hido of tho bullock prosecutor had lost, and' ho thon go-vo information to tho police. Tho noxt day, in company with Sorgoanl Clements, ho wont up to tho Kaniori, and wont to MoKny's sloro. Thoy stopped thovo that night , ami noxt morning, in company with .Sergeant Clements, thoy wont to tho prisoners' tout, nnd soarohod it. Thoy saw John Coopor I horo, and askod him if ho know anything of tho bullock. Tho Sorgoant was in uniform at tho time. Tho Sergeant told Coopov that witnoss wns tho person that had lost tho bullook, and that ho had conio to search tho tout. When aikod, John Coopor said ho know nothing about tho bullook. Clomonts lifted a largo billy down from tho video pole, and found in it a lavgo pieuo .of firosli cooked bcof. Wilnoss lifted it out nnel oxaminod it, and said it was liko Iho sizo of what his bullook would havo been, and thon Clements ai'vostod John Cooper. After this, thoy wont- to M'Kay's stovo, and leaving Iho pvisonov thovo, went back to tho tont, and searched it again, but. found nothing, nnd rotuvnod to llio stovo. Thoy thon crossed tho rivor, and went to Josoph C'oopor's tent. Ho (Joseph Coopov) wns working in a rncO outsido his tont, and Olomonts told him that ho must como along with him. They wont into tho tent, and found a gun hanging to tho vidgo polo of tho tont, whon witnoss remarked that that would bo tho gun that- shot tho bulloolc. The gun produced was tho same. Josoph Cooper, addressing witness, said, '• Mr Moffatt, I am sorry I did not soo .you bofovo you spoko to tho police," and wont on to say that ho would havo tried to settle with witness for the bullook. He also said, "I shot tho bullock, but I thought it was a stray one from a Christchurch mob. I will givo you security for tho price of tlio bullook for I have had no peace in my mind sinco I hoard that your man was up on tho following day looking for it." Witness said, that, ho would rather take tho piico of tho bullook than sco thorn going to the look-up, but Sergeant Clemonts would not hear of anything of the kind, Joscp Cooper then told them whoro the beef was Halted, and where tho casks containing it uero sunk in the ground about twonlyynrds from tho tont. Thoy uncovered the beef which was concealed, but apparently to keep tho (lies from it moro than anything else. >It was covered with somo calico and piccerf of wood. Thoy did nob remove any part of it, but put it back and left it. The prisoners wero then taken away, and that was all witness knew about it. Thoy found the hido produced, .vbout three or. four hundred yards from the prisoners tent, and also tho bones and offal. 110 could not swear that ho had seen the hido beforo, hut it resembled tho hide 1 of tho bullock ho had lost, The bones woro taken out of tho meat that witness found in or near prisoners' tent. Tho weight of meat found was about throe or four hundred pounds, and the animal from which it was taken would havo boon killed about thrco or four days Tho part of the hido produced was takon from across the loins, and thero was a whito spot on it, but ho could not swear that it resembled tho spot on tho bullock ho had lost.

Cross-examined by Mr South- Ho would not swear thoro was a whito mark on tho back of tho bullock, hut thero was to tho best of his bolief. Ho had not particularly examined the bullocks beforo this ono got away, nnd paid no particular attention with regard to tho marks, but ho was certain that tho bullock had a tar mark on the back. To tar mark bullocks was a vory usual oustom. Tlicro wns no brand on tho bullook that ho was aware of. A light red was a very common colour. When Clements first saw John Cooper, to tho best of witness's recollection ho told him that ho had come up to bco if ho could liud who had killed tho bullock, Clomonts a'so asked Cooper to toll if ho knew anything about it, and if thoy, via., John Coopov and Keller, had any fresh meat about thoir tout. They said thoy had not. Witnoss could not sweur whether John 'Ooopoi said that ho did not know anything about a bul* look or wltnosss's bullonk. Wlion Oloinonln ni'MHlnd .ToDopli Ooopoi 1 , ho I old him tIM lio wtW tiling will} dialing a Ijullouk, -

Mr. South proceeded a homo length to cr examine tho witness, when

II h Honor remarked that ho did not wish to intorfct'o with tho method of conducting hia case, bnt it appeared to him that a great deal of the cvidouco ho wti't eliciting had been given in the examination in chief. The point, as it appeared to him (his Honor), was whether tho prisoners wero justified in the belief that tho bullock in question was abandoned by its owner. As to the facts^of its having been shot, and as to its identity, there appeared littlo doubt.

Mr. South •uimitteJ that a bullock had been killed, but urged that it was not proved that it was Air Moffat's bullock.

In reply to a juror, witness said Joseph Cooper stated ho was sorry, that ho had not scon him, in order fo mako compensation direotly on their seeing hin\

Louis do Gasporo, a butcher, residing in Ilokitika, on tho 21st of Novombor last wont to look foi 1 a bullock that tho prosecutor had lost. 110 found it up near tho Kainori, and tried fo bring it homo. 110 put a small piooo of now ropo, about thrco or four yartli long, over its horns, but ho could not succeed in getting it down to Ilokitika ns it swam tho rivor. It was a sovb of white-rod bulloolc, and tho hido was similar to that in Court. After this failure witness loft and voturnod to Ilokitika. By Mr South — 110 could not swear that tho hido in Court was tlio hido of tho bullock ho wont after.

Josoph Ammonds corroborated tho ovidonco of the previous wihioss in refcronco to searching for and finding a bullook that tho prosecutor had lost. They attempted to bring it down, but it kept crossing tho rivor, and thoy woro obligod to leuvo it behind. 110 wont up a second timo nnd found its remains whero it had boon killed. 110 found tho hido and offal, and Iho hido in Court was part of it. Ho had known nothing about tho bullook beforo ho wont in search of it. Tho hoad was not found at all. Tho place whoro tho bullock had boon killed was about 200 yards from M'Kay's store, on tho opposito side of tho rivor.

By Mr South— Wlion thoy loft (he bullock thoy did not louvo it in Iho oaro or custody of any ono. Thoro was nothing on its horns, no ropo or anything of tho kind at tho timo. Ro-oxaminod by Iho Crown Prosecutor — 110 only wont onco with tho provious witness, ho did not go a second time. In roply to his Honor, witness said ho did not soo tlio bullook ulivo after tho ropo was put on its horns. By a Juror — Witness boliovod tho hido ho found to bo tho hido of tho bullock that ho had been in soaroh of.

Sergeant Clemonts corroborated tlio ovidonco of the proseoutor as to searching for the bullock, the arrest of the prisoner, and finding the moat. He also repeated a conversation ho had with with Keller, in which Keller confessol that, in company with the Coopers, he had assisted to kill tho bullook in question, and that they had then cut up and used the meat. Peter Kollor, who had been originally charged with tho samo offence, said that in November lust ho was living with tho prisoner, John Cooper . Joseph Coopor lived on tho opposito side of llio river. About tho end of ilint month ono of their mates brought them word that he had seen a stray bullock down the river. John Cooper said, ll lie is worth Lls to us." The noxt morning, witness and John Cooper had another conversation, nnd went across tho river to Joseph Cooper, when it was agreed to go down and fetch tho bullock up. They did so, and brought it closo to M'Kay's store, when it jumped into the river and crossed. Joseph Coopo* received tho bullock on tho other side and drove it furthor into the bush, taking a gun and nxo with him. Witness was with the Coopers ; and after driving tho animal about 200 yards, Joseph Cooper tired a shot and then struck it twice with tho axe, killing it, Tho threo then skinned and cut up the bullock, air.l hung tho quarters to a tree Tho next day he went to the Five-Mile to fctoh salt to salt down tho meat, and returned about 4 o'clock. When ho camo back all tho meat was cut up and the bones broken out and piled up behind Joseph Cooper's tent. They ihon salted down the meat and put it in a calk, which had been got the day before from John Cooper's tent. After this was dono tho cask was sunk about thrco feet in the ground, about fifty yards from Joseph Cooper's tent. Tho bullock that thoy killed was a red sort of color, tho samo color a 9 that of the hide in court. At the lime when the bullock was killed, there was a piece of now rope about fifteen foot in length on its horns. After tho bullook was killed, its bead was carried away and thrown into tho bush. He did not know what was done with the rope. After the bullook was killed, witness took somo fresh heof ovor to John Coopor's tent, and tho constablo found it there. Tho next day ho saw two constables looking for beef, and John Cooper told them that witness had biought what was in his tent from tho Vivo Mile. After this witness and llio Cooper.-) woro anosted. He and John Cooper wero taken to M'Kay's store, nnd when there ho made a statement iv the pvesonco of John Cooper to the constable, to the effect that the threo killed tho bullock. The gun produocd was the gun used by Joseph Coopor to kill tho bullook with.

By Mr South— Sorgoant Clements had been talking to him, so tluit at last he made n statement. Clements said that if witness would mako a statement ho would get him out of it. He was sure that Clements used those words to him at tho timo when he brought witness to M'Kay's stor<\ or rather about halt' an hour afterwards. When wi'ness and John Cooper wero taken to tho s'oro, there wero two storekeepers, Mr M'Kay and his mate, and another constable there. When Clements spoke to witness he took him aside, and it was then that ho said ho would get witness out of it if tho latter would mako astateinont. When he did make tho stat6mont he was by tho side of ttio constablo and Mr Moff.it, and at that timo John Cooper was sitting outsido tho storo handcuffed. Witness was insido tho storo at tho timo, and gave all the parlioularrf of killing tho bullock. John Cooper was outside and could not" hear what witness was saying, for ho was six or seven yards distant from thorn, and witness spoko in nn undertone of voice. It was in consequence of Ulcmonts tolling witness, he would got him out of it that he mado the statoment, Witness did not know, and the Coopers did not tell him that thoy know whoso bullock it was. At the timo of making the statoment Constable Gleeson was outside, in charge of John Cooper. Witness did not mako any statoment in tho presonce or hearing of Cooper. When they found the bullock it waa about twenty yards from tho river, on the foot track, and was by itsolf. Ho had known tho Coopers between five and six months,* during which timo they had been digging. The bullook wos very wild, and rushed them when they wont to bring him up. From this thoy thought it was a wild stray bullock. Ho had boon innate of tho Coepois, and they had been digging together. Ile-oxamined by tho Crown Prosecutor — Before Clements spoko to witness ho had a conversation with Gleeson, and tho late; also told him if ho would make a statement of the wholo affair ho (Gloeson) would get him out of it. lie did not do so then, but did subsequently in the presence of Clements a?:d tho prosecutor. Ho did not offer to do so till asked by tho polioo. Constable Glooson proved tho arrest of tho prisoners, including tho provious witness. When he had Keller in chargo, tho latter said flint ho would tell him all about it if he would not tell the Korgcaut. Koller wont on (o toll him, when witness stopped him and told him to toll tho sorgcant anything ho had to say. 110 (Keller) persisted, and went on to tell the witness that ho and Cooper killed olio bullook ; and at tho lime John Cooper was sitting somo two or three yards from- whoro thoy woro upcnkinj. Witness could not say whether John Cooper heard what was said or not. After this Clemonts came, and witno->s told him what had passed between Keller and Mm/ Clomonts then look Keller asido, witness being with them, and Mr Moffatt was close by. Clements askod Keller if ho knew who killed tho bullock, and tho latter replied that he did. To the boat of witness' belief, before asking the question Clements told Kollor that if ho would toll, nothing would happen him, or something to that elFoofc. Witness Jot't thorn nt that moment, find did not voinoinhoi' lioaiiiig finy moro' Unit pa soil, C'f nouts told ftvllw tlw nothing wwlfl liftyytu hint «ft«i'

Keller had ,suid, in reply to a' question from Clements, that ho knew who had killed tho bullock. Nothing was said te Keller to induce him to confess, but ho was asked several times if ho knew who killed the bullook. At first he denied that ho know anything about it, and it was afterwards that ho told witness ho would tell him if ho would not fell tho sergeant. ]Jy Mr South — The first conversation between Keller and witness was outsido the store. The storo was made of forn-treo walls, and had a partition. Witness was in tho innor place with tho prisonor.

Sergeant Clements was recalled by his Honor, and askod him' if ho had heard what Keller had said. Ho said ha had. His Honor referred to the statement of Koller, that ho (Clements) had promised that it ho (Keller) would make a statoment ho would take him out of it, nnd asked Clements if that was true.

Clements replied that it was not true, nov did ho uso any words to that effect. Ho had got. Kollov's statement previously, from Constablo G-leeson. In rcforenco to' Keller's evidence, that John Coopor could not hoar his statement as ho was somo yards distant, that too wns untrue. Noilhor \vu9 it tvuo that Koller nia-lo his sfatoinont in consoquenco of. witness saying ho would got him out of ifc. Ho did not beliovo ho made uso of tho expression to Kollor that nothing would happon him if ho told who killod tho bullock, nov did ho hold out any inducomont to him to mako a statomonl.

Tho prosecutor waa also ro-callod by his Honor, aud in roply to questions said that ho was present whon Kollor mado a statement to Clements. 110 did not hoar Clomonts mako any offer to got Kollor out of it if ho told all about it, neither did ho hear anything pasß to tho sumo ell'oct. 110 boliovod f hat something to tho effcot thnt it would bo bettor for him (Kollor) to toll all about it and admit whether ho or any of thorn killod tho bullock had been said, but it might havo como fvom himself (witness). 110 could not romeinbor that anything furthor was said. Clemonts did tako Koller nsido and witness did not hoar what passod. All that timo John Cooper was six or soven yards distant. His Honor, aftor heaving this witness, said that, ho must oxcludo tho wholo of Keller's sintemont, ns tho iiiducoinont apparently held out hy Clomonts would invalidate tho wholo. At thnt timo Kollor was a pvisonor and tho confession was induced by improper moans. Tho Crown Prosecutor said ho would give up the statement made by Keller to the constables, but cpntonded that his cvidenoo as given under oath in the box that day should bo accepted. Aftor hoaring Mr South, hia Honor agreed with the Crown Prosecutor, and expunged only llio ovidonco given by tho police in referenoo to the confession mado by the prisoner Keller whilst in oustady.

At this stage of the otise, his Honor called Sergeant Clements and constable Gleeson forward, and remarked that frequently the anxiety of tho polico to obtain convictions was productive of actual harm. Thero was no doubt that police oflicers of all grades wero actuated by a sincere desire to do their duty, in pressing cases, and had no interest or mo'ivo in doing so excepting to do their d lty to the public. It must be recollected, however, that they might sometimes show ovorzi>al, which was quite as dangerous, onsoino occasions, as neglect. On that occasion, for instance, ho had to oxpungo from his notes a great deal of tho evidence that had been given, and which had arisen out of a confession that the polico had held out inducements to obtain. Ho did not regret the occurrence, howovor, as it gave him an opportunity of making theso remarks, which would havo the effect of checking this ovor-zeal on tho part of tho police, a great tendency to which had arisen. The police had a most difficult and delicate duty to perform ; the polico of the colony were a great credit to it, and wero an cflicient and valuablo force of experienced men, bnt, ho could not help observing that through anxiety to do their duty thoy sometimes slightly oxceedod it. lie referred to tho oustom of endeavoring to get admissions from prisoners, and concluded by observing that it was direotly in opposition to the principle of English law, which was in every case to caution prisoners against committing themselves, aud to show the utmost mercy and consideration to iho accused.

Mr South addressed tho jury for the prisoners, After concurring with his Honor in tho remarks made in roforenco to the over-zeal of tho polico, ho said that it must bo fir.-it shown that the prisoners had not reasonable ground for believing that tho animal was a stray ono without an owner. Ho quoted Wolsby on the law of criminal evidence, u herein it was htattul that to constitute a felony there must bo au intent to doprive the owner of goods at the timo of taking. The samo authority also laid down that if one loses goods and another finds them, not knoiving tho owuor, and converts them to his own use, this was said to ho no larceny, even though tho finder should uso or secrete them. Again, goods lost or abandoned by the owner, and appropriated by another was no larceny. He urged thafc this was exactly tho position of tho prisoners. Again, tho identification of tho bullock was far fiom complete, inasmuch us 'none of tho witnesses had positively sworn to tho- hido bomg identical with tho hido of tho prosooutov's bullock j all that thoy had sworn being that thoy boliovod it to bo so. In rofevoneo to Keller's ovidonco, as coming from an informov, and induced as it was, tlio jury must accept it with considerable hesitation. 110 tjien wont on to explain tho conduct of tho prisoners, and argued that tho surrounding oiroumstancos went to show that f hero was no known owner of tho bullook, anel that thoro wns no felonious intent on thoir part in killing tho . bullock, ovon if thoy had dono it. 110 ulso pointed ouf , oven if tho jury woro satisfiod of tho idontitv of tho animal, that as soon as tho prisoners know thoy haei shot somobody's bullock thoy woro ready aud willing to offer ovovy reparation. ' llis Honor, in summing up, said that boforo going into tho facts thoro woro soino points of law to bo cloarcd up, which ho would explain to tho jury. In tlio fivat placo thovo wore two prisoners in tho (look charged with killing an ox, though in faot there wns not a partiole of ovidenco to show that John Cooper had anything whatever to do with the actual killing. If, however, two or more persons combined to commit an unlawful act, eaoh was equally liable for tho notion of the other, and in this case John Cooper was olearlg a concurring party. The next point was the identification of the ox; for the Jury must be fully satisfied on this point, or otherwise the caso was stoppod on tho vory threshold. In tho next place, in roforonoo to the lino ef defence, that the prisoners wore justified in killing the animal iv ie was without any npparont owner, he would explain •tho law in such oasos. It property was found for which an oivnor could not bo asceitained, and tho finder really beliovcd that no owner could bo found, then there would bo no larceny in iisupprbpriation. On this point the case hinged entirely, and it was for the jury to say whether the prisoners had reasonable causo to beliovo that no ownor could bo found for iho bullook. In referciico to tho evidence of Kollor, it was quite true that, unless corroborated by surrounding oiroumstanccs, it must havo been accepted with great caution, for ho stood in the position of an accomplice, and the law required that in all casos whoro tho necessities of jubtiuo i cquired ovidonco of this character, it must bo corroborated by circumstances or facts. In this caso such corroboration was supplied, and tho jury would dotormino how far i'- affected the prisoners. 110 thon wont' carefully through tho ovidouco, and loft the case in the hands of tho jury.

Tho jury retired, and woro some timo absent. On their return they acquitted tho prisoners. Tho Court thon adjourned till ono o'clock tomorrow (this morning.)

Mr 11. W. Longfellow is said to bo ongagod on a now story, in vorso, based on incid.en.ts drawn from Iho recent war.

Dr Loggo, aflor his appointment as Bishop of Oxford, had tho fojly to ask two wits, Canning and Froro, to bo prosont at hia livsfc sevmon. " Well," said ho to Canning, « how did you liko it p" « Why, I thought it was wthev ~-»hoi>fc." "Oh, yos, I am nwa.ro that it wu« short, but 1 wns iifmlrt of holitu ioilioui,"