RESIDENT MAGISTRATE'S COURT, WESTPORT.

Westport Times, Volume II, Issue 219, 14 April 1868, Page 2

RESIDENT MAGISTRATE'S COURT, WESTPORT.

(BeforeT. A.S.Kynnersley,Esq.,E.M.) ' Monday, April 13. PEItJUEY AND IMPERSONATION'. John Jenkins was brought up on remand, charged with wilful and corrupt perjury and impersonation during the election for a member of the Legislative Assembly, on the 9th inst. Mr Inspector Franklyn conducted the case on behalf of the Crown, and Mr Tyler defended the prisoner. Mr James Payne, deposed—l acted as poll-clerk on the 9th inst., at Westport, and the prisoner claimed to vote under a miner's right. When the prisoner was told to sign his name Mr Pitt objected, and asked for him to be sworn. Mr Pitt was a scrutineer, Dr. Giles, the Returning Officer, directed him to be sworn, and the man hesitated a little, and Dr. Giles asked him if his name was John Smith, and he said " yes." Mr Pitt then went for the bible, and the prisoner was then sworn. I cannot remember the exact form of the oath, but it was similar to the form pres :*ribed by the act. He signed the name of John Smith to the document, after the oath was administered. After he had been sworn the prisoner mentioned that his name was Jenkins. Dr. Giles asked him if his name was Jenkins, and he said " yes," but he had no intention of doing any harm. Dr. Giles then called a constable and gave him into custody. I have known the prisoner for six months by the name of Jenkins.

By Mr Tyler—l have known the prisoner for six months. I have never spoken to him, and did not know whether I was known to him. The prisoner was well known in "VVestport. I cannot swear whether he was the John Smith mentioned on the miner's right. He might have taken out the right in the name of John Smith for aught I know to the contrary. Mr Harry Pitt deposed I am a solicitor residing in "VVestport. On the 9th of the present month I was acting as scrutineer on behalf of Mr Home. I remember Jenkins making application for a vote on that da} r , under a miner's right which he produced, and which was the same as the one in Court. I requested that the oath might be administered to him. I saw him sign the poll sheet in the name of John Smith. In answer to a question from the Returning Officer, he said his name was Jenkins, and that he had purchased the miner's right that morning, and he thought he was doing no harm, or words to that effect. I have known him since August last by the name of Jenkins.

By Mr Tyler—Mr Payne and Dr Giles were both present on the occasion. The prisoner said he purchased the miner's right that morning. lam not positive on the matter, but I believe that he said so. I believe the oath now read was the oath administered to him. I never had any professional business with the prisoner.

John Leslie, sworn —I am a banker residing at Westport. I have known the prisoner about nine months. He keeps an account at the Bank of New Zealand in the name of John Jenkins. I have never known him by any other name.

Owen O'Neill deposed—l am a storekeeper residing at Westport. I have known prisoner about twelve months. lam a partner of his, and have been so for about six months. He joined the firm under the name of John Jenkins. I have never known him by any other name. He never told me that he had gone by any other name.

By Mr Tyler—He was in partnership with Burns and O'Connor before he joined me. I have had many transactions with him. He was a native of Wales, and not at all an intelligent man. I have seen him several times in an excited state. I could not understand him when excited.

By Inspector Franklyn —I have seen him write his own name. I believe I could get the better of him in a business transaction. He took my word as to whether things were right or wrong. By the Court —The prisoner managed one part of the business. Each managed their own department. Constable Pringle deposed "to knowing the prisoner for six months, and said he saw him sign two receipts for milk in his presence.

Constable Hunter stated that Jenkins was given in charge to him on the 9th inst., by Dr. Griles, on the charge of impersonation and wilful and corrupt perjury.

This closed the case for the prosecution.

The prisoner on being called upon for his defence said : I bought the miner's right for my own private purpose at the Court in Westport, last July, and paid £1 for it, and it has not been out of my possession from that day till last Thursday, when I delivered it up at the

polling place. The reason whv I took the nan e of " John Smith" was b cause. I had a partner at the time, and I did not want him to know that I had a share, as I thought that he would claim part of it. I was asked in the polling booth if the name on the miner's right was John Smith, and I said '.' Yes." I was afterwards asked if my name was Jenkins, and I said " Yes."

Mr Tyler, in an able and eloquent address, proceeded to sum up the evidence in favor of the prisoner. It was laid down in the Act that the oath must be taken before a competent authority, but this had not been shown for the Act prescribed one form of oath, while the prisoner had been sworn in a different one altogether. Unless it could be shown that the prisoner had committed perjury according to the law laid down, the case must fall to the ground, as there was no evidence to convict him. The Regulation of Elections Act, 1858, prescribed one form of oath, which the prisoner was sworn under, while the Miners' Representation Act of 1862 prescribed quite a different form of oath altogether. Mr Tyler then quoted the two Acts in support of his argument. The form of oath prescribed by the latter Act, which was applicable to the case in question, viz., the Miners' Representation Act of 1862, was not put, but only that of 1858, which did not apply, and therefore no perjury was shown. So far related to the act of perjury, but he would now come to the charge of impersonation. There was no evidence shown that the prisoner was not the John Smith mentioned in the miner's right, and this statement was quite consistent with the prisoner's statement. He did not deny but that he took the oath in the name of John Smith, but on being asked directly afterwards said his name was John Jenkins. He had taken out the miners right in the name of John Smith and no evidence had been produced to the contrary. The only way to disprove this, was to show that John Smith who took out the miners right was not the prisoner, and even Mr Payne had not ventured on that and therefore it was quite consistent with the prisoner's statement The prisoner said he had bought the miner's right from the Court in July last, and no evidence had been shown to the contrary—not even the Clerk of the Court had been called to disprove his statement in this respect and therefore there was no evidence to show that he had sworn falsely. The only evidence against him was that his name was Jenkins, whereas he had a miner's right inthe name of Smith which he did not deny. He said on the day of polling that he had bought a miner's right in the name of Smith and this he did not deny. He had done so and he told the Court the reason why he had done so. and therefore there was no evidence as to impersonation. He had taken the miner's right out in the name of John Smith, and he had appeared and voted in the name of John Smith; therefore he contended that point was fatal to the case, and the prisoner must be acquitted. The Crown must prove that he had committed wilful and corrupt perjury. Had they done so. He (Mr Tyler) contended there was no corruption, for the man was known to everybody in "Westport, and he was a man of not very bright intellect, as he would show in evidence, and he believed he was doing nothing wrong, and therefore he called upon the Court to dismiss the prisoner. It could not be wilful, deliberate, and corrupt perjury. There was no end to be served, therefore it could not be corrupt; he was well known to everybody in town, therefore it could not be wilful; and so the act was done apparently unconsciously, or with the idea that he was not doing wrong, it could not he deliberate therefore. He called upon the Court to discharge the prisoner. He would call Mr Eugene O'Connor to show that the miner's right had been in prisoners possession months before the charge. Eugene O'Connor deposed that he was a trader residing at Westport, and had known the prisoner for about ten years, and had had many business transactions with* him. He did not consider him an intelligent man ; on the contrary, he thought him of very obtuse intellect, in fact rather low. He never took a leading part in any business transactions whatever. He always worked out the details while his partner furnished the ideas. About eight months since had a share in a claim at Addison's El at, and he was also in partnership with a man named Burns. About four or five months since he had a misunderstanding with the prisoner about some business transactions, when the prisoner threatened he would have him fined .£SO for giving unstamped receipts. Witness watched his opportunity, and when the prisoner was in his public-house he told him that he

would have the receipts and told him to turn out his pockets. Prisoner did so, and among the contents was a miner's right. Witne is said to him " this does not belong to you," and prisoner said it did. The miner's right was made out in another man's name. The prisoner stated that he did not wish his partner ! to know about his having a share in a claim, and therefore he took out a 'miner's "right in another name. He •could not swear whether the miner?* right produced was the same one-that he saw at that time.

By Inspector Trariklyn—The prisoner led me to believe that he had taken out a miner's right in another name. He knew prisoner in Victoria, and remembered him and his brother prosecuting a man for perjury. The prisoner was never prosecuted lor perjury within his knowledge. James 'A. Maguire stated that he 'was gaoler at Westport, and that the prisoner was in the habit of supplying him with milk, and he believed that he was the most stupid man he had ever <met with, and he believed that he was incapable of judging whether he was' acting right or wrong -in a matter of this kind.

By 'lnspector Trahklyn —He had had occasion to find fault with him lately relative to the quality of the ; milk.

This closed the case for the defence,

The Magistrate said lie believed there was quite sufficient evidence to ; commit the prisoner for trial, and as to the points raised by Mr Tyler, he thought there was nothing in them.. As to the wording of the oath, that was only a mere verbal difference, but; in point of fact, the two forms of oath were the same. Regarding the perX- - 1- _ J-1 \.i- - - i !,« A nlonwlir SOnatlOll, ue tuuuyiiu it utuj. uccu v>j.^uiij.jf proved that the prisoner knew he was personating John Smith. Under those circumstances, he felt it his duty to commit him for trial.

The prisoner was accordingly committed for trial; bail heing accepted for his appearance at the next criminal sittings of the Supreme Court at Nelson, for £2oo—himself £IOO, and two sureties in £SO each.