SUPREME COURT.—WESTLAND DISTRICT.

West Coast Times, Issue 258, 21 July 1866, Page 2

SUPREME COURT.— WESTLAND DISTRICT.

CRIMINAL SITTINGS.

' Friday, 20th July, 1866. (Before His Honor Mr Justice Geesson.)

LABCENY AS A BAILEE.

John Bentick Blanc was charged for that on the sixth day of March, 1866, being then the bailee of a certain gelding, the property of Isaac Freith, did unlawfully and fraudently convert the same to his own use, and thereby did feloniously steal the same.

Prisoner pleaded Not Guilty, and was defended by Mr South. The following jury were empannelled. John Hackett (foreman), George Paterson, John Dutton, John Davidson, John Chiffings, Michael Donoghue, Robert Cole, William Henry Lash, "Andiew Collins, Hugh Cassidy, John Robert Hudson, and John Lightfoot.

The Crown Prosecutor in opening the case stated that the indictment was laid under the "Fraudulent Trustees Act,'' passed in New Zealand in 1860. He said that he intended to prove that in January last the prosecutor instructed the prisoner to bring in four horses which were running at a place called Kaupa : , about 40 miles south of the Grey, for which he (the prisoner) was to receive two of them. Among the horses were a mare and a gelding which the prosecutor especially reserved for himself. The prisoner was to bring the mare and gelding to Greymouth in order that they might be shipped to Nelsou. He brought in the horses, but instead of delivering the gelding which had been reserved he, without any authority from the prosecutor sold it and appropriated the money, and never since accounted to the prosecutor for either the gelding or the money. He called

Isaac Freith, who deposed that he resided at Nelson, and was a shipper of stock. He knew the prisoner, and had done so since January last. In that month he gave prisoner instructions to get in four horses from a place called Kaupai, forty miles south of the Grey. The horses were two entires, one mare, and one gelding. He was to bring them down to Greymouth in order that they might be sent to Nelson. So far as he could recollect, witness did not describe the marks to the prisoner. He told him the ages — one five-year-old gelding, one aged mare, one rising 4-year-old entire, and one entire rising 3 years old. For payment? witness was to give prisoner the two entire colts. The gelding and the mare were to be given to Mr Batty, of the Wallaby, in order that they might be shipped to Nelson. Witness left for Nelson. He next saw prisoner about the end of March ; witness spokfi to him, and asked him if he had got the horses (meaning witness' horses) down yet. He said he had, and that they were up the river a mile or two. He said the gelding was nearly valueless — that he was crooked in the front feet, or words to that effect. Witness told prisoner he was astonished to hear it, as he valued the gelding ; and also told him to get it down by the following Wednesday to Greymouth. Prisoner agreed to bring them down by that time; Prisoner was to have met witness on board the Wallaby steamer next morning, but he did not come. From information received, witness went to the Cosmopolitan Stables in Greymouth, and recognised his gelding there. Witness

had seen a gelding outside the Court ; it was the same. Witnecs told the liverystable keeper not to allow the gelding to leave the stable on any account, as it was his property. Witness saw the prisoner about an hour and a half or two hours after that, at the stables. He challenged the prisoner with selling the horse, and he said he had done wrong and was sorry for it ; he also said that the horse was there, and there was no harm done. Witness again saw the gelding about an hour after that ; Mr Keating was leading it into the Cosmopolitan Stables. Witness asked him what authority he had for taking the horse. He, Mr Keating, said he claimed him as agent for the party who had bought him. Witness observed that the gelding was a little faulty in the fore legs. He had never authorised the prisoner to part with the gelding. He had never accounted for the price of it. He had never delivered the other three horses.

Cross-examined by Mr South — It was at the Grey, on board the steamer Wallaby the agreement was made with prisoner ; it was in January, and I first lend w the prisoner in January. I never saw him or spoke to himon the subject of these horse 3 in Nelson. The Wallaby was at Greymoutb at the time. Mr Batty introduced the prisoner to him, and in course of conversation the horses were mentioned I distinctly told Kirn the terms of the arrangement. The terms were that he was to have the two entire colts for bringing the mare and gelding down and delivering them to Mr Batty. I believe Mr Batty was present when the arrangement was made. I cannot swear it. I do not know that Mr Batty is here today. It was about eighteen months since I had seen the horses. I awear it was between fifteen and eighteen months. It was at Katipai. I saw all of the horses. I told the prisoner on board the Wallaby that I v\ a3 uncertain as to the number of horses. I said so because I did not know whether or not there was any produce from the mare. I did not tell the prisoner that there might be five or six horses. I distinctly described the horses to him* There is not the slightest resemblance between one of the entires and the gelding, except a little in the color. One has tme spot on the forehead, the other one two. I never offered to sell the horses to prisoner. I eminot swear whether or not I mentioned L7O as the price of the horses. I do not recollect anything of the kind. I will not swear that 1 did not. At the time of the arrangement with prisoner I distinctly told him I wanted the gelding. I said nothing about the mare. It was understood I was to have the mare with the gelding. That was all the agreement. I described all the horses distinctly after a lapse of eighteen months. He was to have the two entire colts. I never mentioned anything to prisoner about his taking them "at a price. When the prisoner brought the horses down Mr Batty was in kelson". He was not in Greymouth at the time I arrived. lam not aware that the horses were sent up the Grey to graze because there was no grass in town. It never came to my ears. The first time I saw Blaue after the agreement was at the Maori house, after looking for him several hours. He told me he had sold one of the horses ; he did not specify which. It was not explained, and I did not ask him which horse it was he had sold. I then told prisoner to get them down by Wednesday, to ship on board the Wallaby. This occurred on Sunday. The next day (Monday) I saw the prisoner. Ido not remember seeing him opposite M'Lean's. On the Monday I asked him about the chesnut mare. I asked him if he knew anyone that would buy her, as I did not intend shipping her to Nelson if I could sell her at Greymouth. I had not seen the gelding at that time. The same day, shortly after this, 'l saw Blanc in Graham's stables, and said to him, ' " Why, you have sold the gelding !" He said he had done wrong, <and was sorry for it." He did not say "If he thought he had done wrong, he was sorry for it." I did not say to prisoner, " Did I not tell you not to sell the gelding ?" and prisoner deny it. I did not afterwards, at Johnson's Hotel, say to the prisoner " You must have misunderstood the agreement. I am sorry that I have fjone 60 far.'' I never called myself hotheaded. I never said I was sorry for what was done. Nothing ever passed between me and the prisoner on the subject of LSO. I never intimated to the prisoner that LSO would settle it. I do not know what splay-footed is. I have not been among horses all my life. I am 34 years of age and have been among them 20 years. I don't think that the peculiarity in- the gelding's feet detracts from his value. I know Mr Keating, he is a very tall man. He (Keafing) did not sa" there was a resemblance between the gel Jin,/ and one of the entires. I don't knovv that Mr Batty was not at Greymouth when prisoner brought the horses there. I did not tell Blanc he was to have half the | horses. It was agreed he was to have half the produce (if any), in addition to j the entires. None of the horses were [ branded except the old mare I value the gelding at LIOO. It ia outside the Court. Blanc told me there was something wrong about the feet of the gelding. When the horses were running they were in no one's charge. James Counsell deposed — That he was a butcher at the Little Grey, and remembered about the month of March last he was at Greymouth. He knew the prisoner by sight, and saw him there at that time. He had four horses in his charge. Keating and a great many others were presentbesides himself. This was on the 6th March. Witness had a conversation with the prisoner about the gelding. The prisoner said that he had two of the horses for himself for fetching down the other two. He said the gelding was one he was to have. He also mentioned one chesnut entire gtfhich he said he had for sale. The result was that witness purchased the gelding from the prisoners for L2O. He said the other horses belonged to Mr Frieth. "Witness preferred the gelding to an entire, because an entire would have been very troublesome on the road. He did not select out of the four. Witness asked him what he would take for the gelding, and it was in reply to this question that he said he had two horses for bringing the others down. The gelding is outside of the Court.

Cross-examined by Mr South — I knew the prisoner seme time before, and hearing that he had some horses, I went to him as to purchasing the same. He did not tell me the circumstances as to his getting the horse. The first proposal for the gelding came from me. William Keating deposed that in March last he was a veterinary surgeon, residing at Greymouth, but was butchering now. He knew the prisoner by sight. He saw

him on or about the 6th March with horses in his possession. Witness was asked to look at the horses. Prisoner stated he had two of the horses for sale ; the gelding outside the door, and one of the entires. (Witness here said he was mistaken as to the gelding and the entire.) Witness was asked by Counsell to give his opinion professionally on the horses. The prisoner did not, in witness's hearing, offer the horses for sale. He sold it to Counsell.

By Mr South — The sale did not take place in my presence. Prisoner said, in my hearing, something about arranging as to the price of the gelding. At the time Counsell called me in as his adviser I had no conversation with the prisoner. It was I who advised Counsell to buy the gelding. I never heard the prisoner offer the gelding for sale to Counsell. The prisoner said nothing to me at the time the gelding was sold as to how he became possessed of them. He did so afterwards. It was about five days after the gelding was bought I was commissioned to try and buy the brown entire colt. I went to the prisoner, and he . told me it could not be sold. He said he had to send him to Nelson with the old mare — that was his agreement. My opinion is that there is very little difference in the value between the gelding and the brown entire. I consider that on this coast the brown entire ia equal in value to the gelding. There was nothing secret in the mode of sale ; all was done in public. I did not see Mr Batty there about the time of the sale. I think that the gelding was sold a little over its value. The gelding would require breaking in before it would he of much use. This would be done in the town.

Re-examined by the Crown Prosecutor —I cannot tell the value of the colt in Nelson or in Dunedin.

Donald M'Lean said — That he was an auctioneer at Greymouth. He knew the prisoner. He saw him in the beginning of March, 1866, relative to the sale of horses. Witness next saw him in the street, and he said the four horses had come down the river. The prisoner wished to know the best way to sell them, and how they could be sold. He did not mention the number that were to be sold. Witness said they had best go up and have a lock at them, and they did. He saw four — a mare, a gelding, a brown entire colt,, and a chestnut entire colt. The prisoner said he wanted to sell the whole four ; but witness told him he did not think they would sell at auction on account of their not being broken in. From the prisoner's conversation witness understood the four horses were for sale. He did not state to whom they belonged. He did not say they belonged to him, nor to any person. The first conversation witness had, prisoner said he had some horses running up the country, and thought of bringing them down to the Grey to sell them. It was in reference to that conversation that witness went to look at the horses.

Cross-examined by Mr South— The prisoner did not put the horses into ray hands to sell. I think I first suggested that he should sell them by auction. He did not say yea or nay, I merely suggested that he should bring them down the river and, try them by auction, nothing came of the conversation, Prisoner afterwards voluntarily told me that he had sold the gelding. Ido not recollect whether it was in the street or where it was. When we went up to see the horses we spoke more of the value of the gelding and the brown entire than of the others. I do not recollect putting any value on the others. Ido not recollect whether Mr Blanc told me of his intentions as to the bay mare and the entire.

William Henry James deposed that he was Inspector of Police at Greymouth. He knew the prisoner, and he remembered the 19th March. Witness arrested the prisoner in Greymouth on a charge of selling a gelding belonging to Mr Freith. Witness told him who he was and cautioned him. He said it was an awkward job and he did not wish to be detained. Prisoner then asked witness to allow him to speak privately to Mr Keating, which witness refused. He then asked to be allowed to speak to Mr Freith, who was walking a few yards distant, but witness refused this also.

Cross-examined by Mr South — Prisoner when arrested also asked me to let him go, saying I could see him in the morning at the Melbourne Hotel.

Joseph Taylor, Baid that he was a cattle dealer residing at Greymouth. He went to Graham's stables and saw the prisoner there. Witness heard Mr Freith speak to prisoner about the horse. He asked the prisoner whether he was going to deliver up the horse. Prisoner acknowledged before witness that he had sold the horse and that he was very sorry for selling it. Witness has seen the horse outside the court to-day. Cross-examined by Mr South — I never heard the prisoner say that if he thought he had done wrong he was sorry for it. He might have said it. Mr Freith's manner was quiet when he went into the stable. It was a little up afterwards. Mr Frieth said he must have the horse somehow.

This closed the case for the Crown. Mr South then wished to put it to his Honor whether the Crown had made out such a case as would enable his Honor to send it to the jury. He quoted Russell on crimes as to the delivery of possession, wherein it was laid down that such possession must be given that would amount to a bailment.

His Honor said he thought that there was sufficient evidence to enable him to do so.

Mr South presumed he could call the witnesses first and then address the Court.

His Honor said that according to the rule laid down by the Judges such a proceeding could not be allowed. Mr South addressed the jury on behalf of the prisoner, pointing out to them that, as the case for the Crown then stood, at had completely broken down, for they had not proved that the prisoner acted, with any fraudulent intent. The law said, and it must be taken strictly and consistently, that before you can convict a prisoner who is accused of an offence like the subject of the present indictment, it was absolutely necessary that a fraudulent intention on the part of the -prisoner to deprive the owner of his property in the article, alleged to have been stolen, should be clearly proved. He would draw their attention tQ the evidence for the prosecution.- The manner in which the prosecutor had given his evidence clearly proved animus on his part against the prisoner. Was it not remarkable that his recollection should be so good in regard to facts prejudicja.l to

the prisoner's case, and so very imperfect as respects those which would operate in his favor. Was not this a proof that the prosecutor was prejudiced against the prisoner? He knew very well that, by drawing the attention of the jury to the evidence, the Crown Prosecutor had a right to reply, but this he did not fear. He simply wanted to put the true factß of the case before the jury, feeling sure that they, after a little consideration, would no doubt acquit the prisoner. They could see that the prisoner had*acted under a misconception, and not fraudulently, as the Crown Prosecutor would lead them to believe. There was no secrecy in the transaction ; all was done openly. In cases like the present, there were certain rules and principles of law which were applied to shew the intent of the party. The sur-» rounding circumstances were taken into consideration. Take, for instance, secrecy, selling articles under their proper value, and other circumstances of a like nature. These would imply a guilty intention ; but there are none such in the present case. The prisoner sold the gelding openly, and at a good price indeed, as Keating, one of the witnesses for the prosecution says, a little over the value of the animal. It had been proved that the value of the colt and of the gelding were about equal. Why, then, should the prisoner wish to have the gelding in preference to the other. Again, it would be observed that when applied to for the sale of the brown entire, he said he could not sell it, as it had to go to Nelson with the old mare. Did not this shew that the prisoner had misunderstood the terms of the agreement? He, the learned {counsel, would bring before them evidence short and concise, but pertinent. It was always most desirable, and, in fact, material, to bring before a jury the surrounding circumstances of a case, and he would do so in Jhis instance. He said that the prisoner was a man whose character had been hitherto untainted, to prove which he would call the very witnesses who had been evidence for the prosecution. Looking carefully at the evidence taken, the conclusion the jury would Come to was this ; — that if the gelding had been a screw they would never have heard anything of the matter; but the prosecutor saw the horse and set a value upon it. He wanted the animal, and because he could not get it, up comes a criminal prosecution. He would call respectable witnesses to prove that the prisoner had acted under a misconception. If the jury did not believe it was his intention to act fradulently, then they could not find him guilty. If there was a consistent doubt or hesitation in coming to a conclusion as to the guilt of the prisoner, this would warrant them in discharging him. He called,

George Holmes, who deposed that he was a carrier. He had been at the Grey about seven months, but had left it about three months ago. He knew the prisoner very well, and remembered seeing him about three weeks before Mr Freith's horses.

Mr Duncan here objected to Mr South bringing evidence in favor of the prisoner, as to statements made by him. After some argument the judge said it could not be allowed.

By the Court — I did not do anything in reference to the horses ; but prisoner agreed to give me £15, or half of the horses he was to get when he got them down if I would bring the horses down. By Mr South — Understood he was to have half the horses. Mr Blanc said he could not describe them for he did not know the description, or how many there were. Witness has known Mr Blanc these four years. He never heard any charge against his honesty. When witness first knew him he was a publican, and since that he has been butchering. He had dealing with him as far as a bit of butcher's meat .goes. Donald M'Lean deposed that he had known prisoner for twelve months. He had had dealings with him, in which he had always acted in a straightforward manner. Prisoner's character is very good at Greymouth. The first transaction witness had with the prisoner he gave him credit for a sum of money on account of his character, and witness repaid him. William Keating deposed that he had known the prisoner for about six months. He had had dealings with him. His general character, so far as witness knew, stood very good in the eyes of the public.

The Crown Prosecutor briefly replied, saying that no one could deny that, by the evidence adduced, jt was proved that the prisoner was a person of good character up to the time of being charged with this offence, but that, looking at the conduct of the prisoner, the jury would have no doubt that he acted feloniously.

His Honor proceeded to sum up the evidence and place the case before the jury. He said that they must be satisfied that the prosecutor had delivered the horses into the possession of the prisoner simply to bring down for him, and that the prisoner fraudulently converted the horse to his own use. This was the cardinal point. They must be certain that there was no misconception on the part of the prisoner before they could convict him. If they thought ,tnat the prisoner had acted under a misconception as to which horses he was to have they would acquit him ; but if they thought he had acted with a guilty knowledge, then they must convict him. His Honor asked them carefully to consider whether upon finding that he had made a mistake in the sale of the gelding, and not liking to meet Mr Freith owing to the mistake, would not this be consistent with the prisoner's behavior, supposing, as he wishes you to believe, that he acted under a misconception. He would not express an opinion, it would be for them to decide. His Honor then read over such of the evidence as touched upon the material points of the case, and left it to the jury to decide whethor the prisoner was guilty of the crime with which he was charged or not.

The jury brought in a verdict of Not Guilty. His Honor then discharged the prisoner, observing that he concurred in the verdict. EMBEZZLEMENT. William Tait alias Charles Manders was charged with having on the 12th day of March embezzled certain moneys of his masters' Alexander M'Lennon and David Kingham. Prisoner pleaded Not Guilty, and was defended by Mr D'Loughlin. The following jury were sworn : — Cornelius John Payne (foreman), Andrew Gumming, Solomon Michael Solomon, William Kingwell, William Toung, John Dixon, Thomas Betts, Archibald

Scott, William Thomae Walker, George Baillie Gibson, Joseph Anderson, and Kwrv Af^te. The Crown Prosecutor said that the indictment was laid under 7 and 8 Geo. 4 c. 23 s, 49. He stated the particulars of the case which are as follow : — The prisoner who was in the service of Messrs M'Lennon and Kingham, the prosecutors, was loft at Nelson's Creek in charge of some fifteen sheep His instructions were to wait there until Mr M'Lennon or Mr Kingham should return ; or if he could do fio to sell the sheep, but tit not less^than 42s 6d per head, During the absence of Mr M'Lennon the prisoner sold four of the sheep to one Thomas Evans at 30s §er head and decamped with the money/ o that when Mr M'Lennon returned he found neither the prisoner, the sheep, nor the money. The prisoner had nerer accounted to his masters for the money or the property. He called— Alexander M'Lennon, who deposed — That he was a storekeeper at the river Grey. He knew the prisoner Tait. He went by the namd of Charles Mandera. He the 10th March last, at which time the prisoner 1 was in witness' employment as servant. Witness had a partner.- Prisoner was in the employment of both ds Servant. Witness was at the time not only a storekeeper, but was butchering as well. Witness left prisoner in charge of fifteen sheep at Nelson Creek, and gave him strict orders not to sell them alive under 42s 6d per head, and to sell them dead at Is for the fore quarter, and Is 3d for the hind quarter. Witness gave him strict orders not to leave Nelson Creek until he saw witness or his partner (David Kingham). It was on Sunday morning, the 11th, witness left him in the gully. Witness told prisoner that he or cis partner would be back on the Wednesday or Thursday. Witness left him there. If he sold any sheep in the meantime he was to receive the money, and to keep it until witness or his mate Came. He had to account for the money he received. Wituess returned on the Tuesday following, and found that he was gone. From information witness received he returned back to the Twelve Mile and from there to the Warden's office, and gave information to the police. When witness went up to where he had left the prisoner on the Tuesday the sheep were all gone. The prisoner hag not ac- j counted to the witness for any of the sheep or the money. He never saw him again till he saw him at Cobden in charge of the police.

Cross-examined by Mr O'Loughlin — I engaged prisoner as my servant on the 7th March. The engagement entered into between us was that he was to work for me for L 5 per week. He was to do whatever I wished him to do. I told him at the time what he was to do. I told him that he was to drive the sheep and kill them in any place I thought proper to send him. There was nothing else. He was to sell them and receive the money and to account to me or my mate. I swear this was said at the time. I returned a day or two before I said. I never applied to him for the price of the sheep, because T never saw him till he was arrested — I could not ask him for the amount. He never at any time refused to account for it. I will undertake to swear positively that the prisoner had no interest whatever in the proceeds of the sheep. By the Crown Prosecutor — The reason I did not ask prisoner to account was that he was away when witness returned, and he had no opportunity of asking him. By the Bench (at the suggestion of Mr O'Loughlin) — I laid the information on the Tuesday, when I found the prisoner was not there.

Thomas Evans deposed — That he was a butcher living at Nelson's Creek. He knew the prisoner and had seen him there about the 10th March, 1866— 1t was Sunday. He had some sheep in his possession. Witness does not know to whom they belonged. Witness bought the refuse of 15 — viz., four, at 30s per head. He paid prisoner the price of them, L 6. The remainder of the 15 were "retailed out to the diggers. Witness knew this of hia own knowledge. It was done in witness' shop. The prisoner left Nelson's Creek, witness believes, on the Monday or Tuesday following. He did not return that witness knows of. To the best of his knowledge prisoner wanted to sell some dogs, because he said he wa3 leaving, and he did not intend to drive any sheep again. Witness 'did not see him after that. , By Mr O'Loughlin— He offered the sheep to me alive on the Saturday, at 455. I did not agree to buy any at that price. Prisoner said that if I did not buy them he would leave them until Mr -♦Lennon came. The prisoner said he had * an interest in the sheep, and was mates in the sheep with M'Lennon.

David Kingham deposed that in March last he was a butcher on the Grey. He was in partnership in sheep with Alexander M'Lennon. Witness knew the prisoner. He was in their employment as driver and butcher. His wages were £5 per week. Witness was not present when prisoner received his instructions as to the sheep he took to Nelson Creek. Richard I>yer was not examined. Mr O' Loughlin observing, that he was always afraid of a policeman. The learned gentleman then submitted to His Honor that the charge of embezzlement was not proved, and that there was nothing to go to the jury. He quoted Roscoe's criminal evidence, the edition of 1857, page 437, in which it was laid down that it must be proved that the prisoner refused to account for the property. His Honor said he mu9t concur with Mr O'Loughlin, and asked the Crow/j Prosecutor if he had anything to say in the matter.

Mr Duncan merely wished to observe that he considered the refusal to account fully proved, as also the felonious intention. He said that prisoners absence from the place at which he was told to be by his master, was constructive evidence of refusal to account, and an intention to defraud.

His Honor must say that he certainly did not think that the refusal to account had been proved ; he would therefore direct the jury to acquit the prisoner. The jury acquitted the prisoner accordingly.

The Court then adjourned till 10 o'clock to-morrow morning.

An Amebican Epitaph.— The following is the conclusion of an epitaph on a tombstone in East Tennessee :—": — " She lived a life of virtue, and died of cholera morbus, caused by eating green fruit in the full hope of a blessed immortality, at the early age of 21 years, 7 months, and 16 days. Header, go thou and do likewise."