NELSON SUPREME COURT SITTINGS.

Westport Times, Volume II, Issue 295, 11 July 1868, Page 7

NELSON SUPREME COURT SITTINGS.

Those sittings commenced on Wednesday, July Ist, before his Honor Mr Justice Richmond. His Honors charge refers exclusively to West Coast affairs, and we republish it entire. We have no intention of re-opening old grievances and, therefore make no comment on its contents, but they will be read with no small interest in this district. We extract thesubjoined report, froin the Nelson papers. His Honor addressed the Grand Jury, as follows :- Grentlemen of the Jury— There is only one case in the present calendar which calls for any remark from me for your guidance. It is a charge against a man at Westpoi't for personating another voter at a late election, by claiming to vote under a miner's right issued, it is alleged, to another man. You will remember that a miner's right entitles the holder to the franchise, provided it has been in his possession six months. This question amongst others is put by the Returning Officer, " Are you the person whose name appears as A.8., on this ininei-,s right ?" and it is alleged that the person prosecuted was not

the person whose name appeared on the miner's right in his possession. It may be that some evidence will he brought forward tending to prove that the individual who tendered the vote, had himself taken out the miner's right under an assumed name. If so, that would not amount to a ease of personation, for he might, under such circumstances, truly answer the question put to him by the Returning Officer. If you think this proved, there will, obviously, be no case to go to a jury, but if the reverse, you must send the case for trial.

The disturbances on the West Coast, which have lately occupied so large a space in public attention, happily require from me no further notice. But in relation to those disturbances there have been certain official proceedings within this district on which 1 feel bound to make some short comment, because those proceedings have betrayed grave misapprehension of the law respecting the conservation of the peace, which it is my duty to correct. In these islands his Excellency the Governor is the supreme conservator of the Queen's peace; under him—immediately under him (gentlemen, I emphasize the word, immediately)—are the Justices of the Peace. Superintendents of provinces, as such, have no duties whatever in relation to the conservation of the peace, save so far as the Superintendent's departmental authority over the police gives him some responsibility and concern in the matter. But the duties of the Superintendent in the matter are mere duties of police, and in all considerable emergencies, nay, even in common tumults, the police in this country, as in England, by whomsoever appointed and departmentally controlled, are bound to act under the orders of the magistracy. Where the Superintendent is on the Commission of Peace, as he commonly is, his brother magistrates would be likely in an emergency to treat him, if present, as their chief, even though he were not their senior on the commission ; but when acting in virtue of his magistracy, the Superintendent could have no authority whatever independent of the General Executive Government of the colony. Now, I find that the local representative of the Provincial Government at Westport has been assuming that he was entitled, in that capacity, to adopt an independent policy in relation to assemblages of a seditious character within the district; to determine of his own authority Avhether Crown prosecutions shall or shall not be instituted against persons charged with taking part in such assemblages, and with uttering speeches of a seditious character, expressive of sympathy with the Fenian conspiracy ; and even, seemingly, to reilect upon the adoption, in a neighbouring district, under the authority of the Colonial Government, of a policy snpposedto he in some respects different from that which he himself had thought it expedient to follow. All these assumptions are mistaken in point of law. As I have shown, even the ordinary duties of the conservation of the peace do not rest with the Provincial Government, much less the policy of the country in regard to it, at critical times.

Much of what Mr Kynnersley did at "Westport, he was undoubtedly empowered and required to do, as holding the Commission of the Peace, but whatever he did in that capacity he should have done in subordination to the General Executive Government, to which it was his duty to refer for instructions. It makes not the least difference that a magistrate is a stipendiary, whose salary is provided for on the Provincial Estimates. Departmental arrangements may exist which pretend to subordinate the magistrate to the Provincial Government, and prescribe correspondence with the Superintendant. All I can say is, that such ar rnge - ments, if they exist, contravene the law of the land.

I make these observations purely with, a view to point out to tlie gentlemen on the Commission of the Peace their true relations to the Government of the country, and in order to remove a misapprehension which might obvi ously lead to bad results. And now, gentlemen, in concluding this address, I must congratulate you upon the issue of the colony from these once menacing dangers—a happy result which we owe to the combined fearlessness and caution with which our affairs Iwe been handled, and above all, to the strong instinct of social order which influences the vast majority of of our people. Gentlemen I may now dismiss you to your duties. CHARGE OF HORSE STEALING. Henry Helford charged with having stolen a horse, as far back as July 1864, was acquitted. Edward Plowden pleaded guilty to

the same oft'ence, and was sentenced to one year's imprisonment with hard labour.

LARCENY. James M'Murray, found guilty of stealing £l3 and other things, was sentenced to six months imprisonment with hard labour. Thursday, July 2nd. Criminal assault with intent. George Brown was charged wdth having committed a felonious assault on the 29th February last, at "Westport, on Mary Melville, aged seven and a half years, daughter of an hotelkeeper. The testimony of the child alone was not sufficient to prove the case against the prisoner, although his Honor exhibited most admirable tact and the greatest patience in trying to extract some evidence from her. The evidence of witnesses and a medical man, however, was considered sufficient to prove the identity of the prisoner and the fact of an attempt at the capital offence, although not effected, and the Jury, after listening to a very careful summing up by his Honor, returned a verdict of Guilty. Sentenced deferred until next day. PERJURY,

John Jenkins, milkman, Westport, was accused of perjury, inasmuch, as on the 9th of April, on presenting himself to vote at the election of a member of the House of Representatives for Westland North, he handed in a miner's right dated July last, in favor of one John Smith, and represented himself to be the person named John Smith, therein.

' Prisoner, who answered to his recognisances, pleaded not guilty. In opening the case, the Crown Prosecutor stated the circumstances, showing that on prisoner tendering his vote along with the miner's right, one of the scrutineers requested the returning officer to administer the statutory oath. He (the Crown Prosecutor) admitted that the oath was not given in the first person, as in the schedule of the act, neither was the whole oath administered.

The Judge remarked that the change in the pronoun " you" for "I" and their congeners would not invalidate the oath ; that had already been decided in the Court at home, but for the instruction of all officials in similar cases he would advise that the precise words of the statute should be spoken by the official entitled to administer the oath, and repeated ipsissima verba by the person sworn. With respect to the oath not being fully administered, that he thought was fatal to the prosecution. A false oath was not punishable judicially, but only under statute, and therefore it was necessary before the offence could be really indictable, that the whole conditions of the statute should be fulfilled, and, therefore, the oath should have been administered according to the form in the schedule.

The Crown Prosecutor said that after that expression of opinion, he would not tender any evidence, and The Judge directed the jury to give a verdict of acquittal. Verdict accordingly. PERSONATION AT AN ELECTION.

John Jenkins, the same prisoner in the foregoing case, was then accused of unlawfully personating a voter at the election at Westport, by representing himself as John Smith, voting in that name, and signing that name to the poll-book. The prisoner was defended by Mr Kingdom The Crown Prosecutor said he was not in a position to prove to whom the miner's right presented by prisoner was originally issued, but he would show that prisoner said that he had purchased the miner's right that morning for the purpose of voting. The Judge—Miner's rights are not transferable ? The Crown Prosecutor—No.

The Judge—ln fact, the person who originally takes out the miner's right is the only possible legal holder of it ? Is that not so ?

The Crown Prosecutor—Yes, your Honor, it is. Evidence was then taken.

Dr. Giles, R.M., "Westport, and principal Beturning Officer for the district, deposed that prisoner tendered his vote, and with it the miner's right produced. Mr Pitt, the scrutineer for Mr Home, requested that the oath should be administered, and while the book was being fetched, I asked him what his name was, and he said it was John Smith. I administered the statutory oath, altering the pronoun, and altering the words " Electoral Roll" to suit the case: "You swear that you are the person whose name appears in the miner's right now produced, and that you have not previously voted, either here or elsewhere, in this present election." Pie took

that oath. He afterwards voted for Mr Gallagher, and signed the book as John Smith. As he was leaving the polling booth Mr Pitt said in an under tone, which, appeared to be heard by the prisoner, " That man has voted under an assumed name." Prisoner then stopped, and came back and said he had purchased the miner's right from another man, and asked if there was any harm in that. Ido not recollect if he said when he had purchased it. He then said that John Smith was not his name, that it was Jenkins. Upon that I called a constable, and gave him in charge for personation and perjury. Cross-examined by Mr Kingdon : I cannot be perfectly positive that prisoner said he bought the right from another man, but to the best of my belief he did say so. Harry Pitt, solicitor, Westport, corroborated the evidence of Dr Giles, adding that prisoner had said he had purchased the miner's right that morning for the purpose of enabling him to vote, and he remarked he did not think there was any harm in that. Cross-examined: lam pretty certain he said he purchased it that morning, but I will not swear positively. I have known Jenkins as a milkman in Westport for some months. This was the reason I asked the oath to be administered to him.

James Payne, poll-clerk at the election, said that prisoner had stated that he had purchased the right to enable hitn to vote, and bad bought it from a man.

Mr Adams, the Crown Prosecutor, summed up the evidence, asking for a conviction.

Mr Kingdon, who called no witnesses for the defence, on behalf of the prisoner, contended that the prosecution was beund to prove that prisoner had not purchased this right under the assumed name of John Smith bona fide, which he had done because he did not wish his partner in business to know he had a mining claim. The Judge: Tou cannot tell the Jury that, Mr Kingdon ; it is not in evidence.

Mr Kingdon argued that there was no real case against the prisoner, who, if he took out a miner's right in the name of John Smith, was really the person which that right represented; and he urged that the thing if done was done through ignorance, as prisoner was known to be a very stolid man, who knew very little of these things ; otherwise he would not have attempted anything like an imposition, which in a place where he was so well known, would be certain to be found out at once.

The Judge, in summing up, after reviewing both sides of the question, wound up by saying, that if the Jury thought there was evidence to show that the prisoner was the person who actuallytookoutthe miners right from the Warden's office under a different namethanhis own, in that case, he wsa guilty of no personation of any other man, although to all legal intents and purposes, the right itself was useless either for voting or anything else, and therefore the Jury would have to acquit. It was for them to determine whether or not this was in the evidence.

The Jury, after a short absence, returned a verdict of Guilty, and pri. soner was sentensed to one month's imprisonment. IPriday, July 3rd. The Court sat this morning at eleven o'clock, when George Brown, found guilty on the preceding day of committing an indecent assault on a child, was brought up to receive sentence.

The Judge, in passing sentence, said, h e had reason to believe that the offence was not an unfrequent one in the colony, and it was necessary to make a severe example of such offenders. In the present case, however, the sentence would be by no means proportionate to the crime which the prisoner had committed. His Honour then sentenced the prisoner to ten years penal servitude. EMBEZZLEMENT. The Grand Jury found a true bill against Patrick Bough, for embezzling money belonging to his employers, at Westport. The prisoner, on being placed, at the bar, pleaded guilty, and called on his late employer, Mr Ee'id, to speak to his previous character, which the latter accordingly did. The prisoner said he had committed the offence in order to enable him to assist the family of a friend in distress, intending to replace the money abstracted, and appealed to the Judge to consider, in passing sentence, the mental agony which he had already endured.

The Judge said that this case differed in no way from the generality of cases of the same character, in which persons of previous good character had •betrayed the trust reposed in them ;

but he saw no reason for making the sentence heavier in this instance than was usual in the case of first convictions. The punishment for embezzlement was very properly more severe than that for simple larceny, as the persons convicted were generally individuals in whom confidence had been placed. His Honor sentenced the prisoner to one year's imprisonment with hard labour.

The criminal sittings having terminated, the Court was adjourned for civil business until Monday, the 13th instant, when the case of Trimble v the New Zealand Insurance Companyj to recover on a policy of insurance for furniture and stock lost in the fire at the Masonic Hotel, in November last, is the only one likely to be tried. The Grand Jury, in the early part of the day, made a presentment to the Judsje, expressing an opinion that an alteration in the law was desirable, to enable Judges to pass sentence of corporal punishment on criminals found guilty of criminal assaults on children of tender years. His Honor expressed his full concurrence in the recommendation of the Grand Jury, and admitted that the law as it stood, was insufficient to retard the commission of the offence.

The following description of Tahiti appears in the Southern Cross. The letter is written by a former resident of Auckland:—" lam at the present time truly in the garden of the world. I do not kuow how to commence, but since I have been on the island I have been in paradise. We sighted the land land last Sunday weeK, and did not get in for a week ; just 43 days from Auckland to Tahiti. On Wednesday before we got in the captain asked for volunteers to pull ashore in the ship's boatto get a pilot, for hewas afraid to go too near the reef for fear the swell would take him on to it. It was a distance of thirty miles to pull, and I for one volunteered. We started at one o'clock, just after dinner, and pulled about 20 miles, just in sight of the break. It was getting dark when a heavy squall struck us off the island. We had to put about and run before it, the sea breaking right over us, and could notland on account of the reef. It was pitch-dark, and, without sails or oars, the boat was making about eight miles per hour. After running along* side the reef for about 20 miles, we happened to see a gap in the reef, so in we went, and landed at a native settlement at one o'clock in the morning. The natives were very kind, and gave us any amount of fruit to eat. At two o'clock we started to pull back to the town, inside the reef, and reached it at twelve o'clock on Thursday—we were just 24 hours pulling what we expected to do in four hours. While we were ashore we were treated very kindly by Mr Stuart, the owner of the cotton plantation ; he boarded us atthe hotel free of charge until we went to the ship. We sent the pilot out, and started to go back ourselves. We got to the ship on Friday at two o'clock. The people on board thought we were lost. The squall had struck the brig, and done a deal of damage in the rigging, blowing away the jib and stay-sail; in fact it was the most dangerous adventure ever I had, and it was providential that we got through the reef; if we had missed the opening in the reef we should most certainly have been blown out to sea, without water or provisions,—in fact, the people on shore say we were the most fortunate lot ever they heard of. This is a charming island,—tons of fruit of all sorts, and the Kanakas are the most hospitable natives I ever heard of; when any people are passing their houses they will run out with hundreds of fruit. There is a splendid cotton plantation belonging to Mr Stuart; he has full 1000 Chinamen and 400 black men working on it. It would be impossible for me to describe the place as it ought to be done, so I must conclude. We sail for San Francisco on Sunday next. I will write on arrival, I must wish you goodbye. Keineruber ine to all."

A rattier good red-tape story is going the rounds just now. It is to the effect that a gentleman rushed into a telegra.ph-office in an inland town a minute or two before nino a.m. to ask, " Has the arrived at ?" The operator, desirous to oblige, flashed the question along the wire to the port named, and received the following brief but rather unsatisfactory reply,—" Not nine o'clock yet!" The operator and querist looked at each other and could not help laughing, although the latter was really in a hurry. He had to wait his two minutes or so until the official at the other end had satisfied himself that "office hours" had commenced, and then learned that I the vessel had rived early that moruling.