SUPEREME COURT.

Gisborne Times, Volume XXVII, Issue 2446, 10 March 1909, Page 6

SUPEREME COURT.

CRIMINAL SITTINGS CONCLUDE!.

The half-yearly sittings of the Su } : preme Court were continued yesterday before His Honor, Mr Justice, Edwards. “ ; • SENTENCES. Victor Munn, who had pleaded guilty in the lower Court to a charge. of forgery was brought up for sentel\lr' AV L. Rees, on behalf of th accused, asked for leniency. He sen accused had acted indiscreetly bv tak in ,r a horse, and then foolishly at tempted to defend himself against the ■ consequences by making a false ie C °His Honor: It was a good den’ worse than you say. Alter he took the horse, ho went to the owner am. tried to obtain £5 from him. Mr Rees asked that accused be ad emitted to probation, or ordered tc coo up for sentence when cHonor: Under the circumstances no person could say that thei e was no criminal intent. Addressing the prisoner, His Honor said it was perfectly plain that liehad established criminal intent, there were a'great many men in the Dominion who seemed to think that a > crime or series of crimes had not been : committeed until tbev had been tneu That was not the law, and the sooner that was understood the better. The prisoner would be sentenced to f,months’ imprisonment in the Auckland gaol. f Wm. Collins, who was found gm r on the previous day of forgery, was brought up for sentence. After heor- ✓ imtr the report of the Probation Officer His Honor said he had not- made up his mind what to do with tbw prisoner, and ordered that he should be brought up again on Friday morning. ALLEGED BREAKING AND ENTERING. The. next case called was that of the charge against Edward Boniface, who was charged with having, on May 28th, 1908. broken and entered the store" of Teat and Friar, at Ormond, and stolen therefrom twenty packets of cigarettes and two shillings in coppers. When the case was called, accused failed to put in an appearance, and alter a. lapeee of about ail hour and a-lialf he came. On being put into the box, His Honor said: Well, prisoner, I hope you have not been inconvenienced in anv way In coming here to attend your second trial. I will not, at this stage, say that you are a thief, biu I will sav that von are the most impudent criminal that lias yet appeared before me. . - This was the second hearing of the case, the jury having disagreed at the first trial last week. • Mr. J. W. Nolan conducted the case for the Crown, and accused was again defended by Mr L. T. Barnard. The following jury was empanelled: W. F. Cedenvail (foreman), G. I. Fa!-, kner, F. G. Arden, H. D. Robinson, S. Whitehead, AY. Rosser, W. R • Clarkson, D. V. Day, C. G. Swallow, C. Bonney, C. 0. Hansen, H. H. Mel lor. The evidence called for the cution was identical with that previously published in the “Times,” with the exception that it was stated bv Detective Rawle in his evidence for the prosecution that since the previous hearing of the case a further examination of the broken pieces of glass taken from the window had revealed the fact that there were indistinct fingerprints and bloodmarks on both sides of. them. Detective Quartermain also gave additional evidence saying that in his opinion, the person whose fingerprints appeared on the piece of glass-(produced) held it between his finger and thumb. The impression of the thumb was a part:cularly good one. and it was an impossible thing to get a good thumb impression if the hand is pressed flat against the wall. iAt the conclusion of the case for. the Crown, Mr. Burnard opened h's case and again called the evidence which had been presented at the fir. t trial. . In cross-examination accused admitted that he had been in connection with Johnston and Keegan, two notorious criminals, for breaking and entering into Colebrook’s "store at Waorenga-a-hika. Jas. Oliver Howie, laborer, Ormond. said that on the morning after the alleged robbery he saw the broken window. -He did not think that a man even of the size of the accused could possibly, got through the. hole in the window. On tho day before he saw the broken window- he saw Air Pound (a witness) at Willow’s Crossing. To Mr Nolan: He was-no relation of accused <>r the Parsons family. John Boland, carpenter, Qrmond, said that he was called in to measure the broken pane in the broken window. There was glass, with a jagged edge, on the bottom of the frame. He could not get through the opening in the glass, nor did he think that ■accused could do so. Pie had seen men with their hands on the window. To Mr Nolan: The men were writing their names on the window with their .fingers. He took the beading of the window off from the inside of tbe window. George Fitzell. of Ormond, horsedriver, said he was in the employ of Teat and Friar at the time qf the. robbery. On the morning after the robbery he saw the broken glass piled against the fence. He did not think a man could get through the. hole in tho window. He also, was in the habit of cutting wood in the kitchen. The ovidence of these two witnesses was new evidence in addition to that given at the previous trial. .At tho conclusion of the evidence, both counsel addressed tho Court at length. His Honor, in summing up, said that jt was indisputable that the finger prints on the glass were those of tho prisoner. If tliev believed the defence set up that the window was broke, by Friar and his friends in a drunken spree, then that was all about the matter. Every case was made doubly; serious when an attack was made on any man, whose only sin was 'that he was a witness. No person could possibly believe that Friar was the. man that it had been tried to (make him out. His Honor continued to review the evidence for the defence, ami remarked that, the articles taken were articles that it would he ■ safe to take owing to the difficulty . >o*f jdentifreation. . .He • cpmjjiieated . a :very strongly op the manner in': which.

:ome of the witnesses for the detentremembered the minute details of a: every-day nature that took place clo: on a year ago. He. did not think the would have the slightest difficulty i; finding that no alibi had been est-al-lished, and that the evidence of Mr. Pound had been concerted. He dk not think that they would have air difficulty in finding that tho finger prints on the inside of the glass were also those of the prisoner/ If they could believe the story of the defence they must acquit the prisoner, but n they could not, it was their clear dut' to- find him guilty. The jury retired at 3.55 p.m., ami returned at 6.20 p.m. with a verdic of guilty. Addressing the accused,'His Hoho: said: Prisoner at tho bar, this conviction as to the propriety of which I have no doubt, coming on top d the previous one, gives me no option but to pass' a severe sentence on you. The sentence of the Court is that yen be imprisoned in the common prism at Auckland for the space of twe years.

CIVIL SITTINGS.

CONNELL v. GISBORNE TIMES COMPANY, LTD. ' The first case, taken in- the civil sittings was that in which J. A. Conn el. proceeded against the “Gisborne Times” Company, Lid., to recover, £375 damages for alleged libel and alleged wrongful dismissal. Mr. H. F. Johnston, of Wellington, appeared for the. plaintiff, and Messrs Sainsbury and J. AY. Nolan represented the defendant company. Air. Johnston, in opening the case, said that there were two causes to the action, one for wrongful dismissal and one for libel. The plaintiff was editor of the newspaper, appointed in August, 1906, and dismissed in April of the following year. Plaintiff had been writing a series of articles on the management of the Gisborne Hospital, and eventually the. resident doctor of the hospital thought- that he had a claim against the paper, and took action, which was settled by the company promising to publish an apology. The apology the plaintiff refused to insert in the newspaper on the grounds that it reflected upon Jiim as a newspaper editor. He (counsel) held that the company said that plaintiff was dismissed because he wrote a libel on Dr. Alorrison, but lie claimed that there was no libel, and even if there was it was not sufficient grounds for dismissal. They did not come to prove a libel on Dr. Alorrison, but the defendants would have to show that the statements contained m the articles were untrue, and he held that the defedants could not allege that a libellous paragraph had been published, as it was not proved to be so. On the question of damages, he held that the amount claimed was too moderate, on account of the difficulty claimant had experienced owing to the paragraph appearing in tho papers. Plaintiff had said that lie would resign on a six months’ notice, but defendants adopted a harsh and . arbitrary course, which had been almost the professional ruin of plaintiff. Counsel here outlined tho circumstances which led up to the engagement of plaintiff by the defendant company, and quoted from the agreement some of the conditions of the engagement. Plaintiff was never brought into contact with the directors, and the only direction he got from them was a personal one, urging him on to the policy which had been decided upon. Then later, to save their own skins, and'without thinking of the damage to plaintiff, they took the action , they had and dismissed him. The articles referred to were of -great benefit to the district, as hospital management had been beneficially changed, and the welfare of the district- improved thereby. Counsel proceeded to quote from a number of the articles.

Air. Sainsbury objected to any evidence being taken regarding prior articles.

, His Honor concurred, and allowed Air. Johnston- to read the full text of the apology. His Honor said that the*"editor was not asked to say anything; the directors said it themselves. Surely men could publish what they liked in their own paper, subject to the law of libel. Air. Johnston held that the evidence on the prior articles was absolutely necessary for His Honor to understand the plaintiff’s position.

Air. Nolan said that the action was based on the article which appeared on April 23rd. If the outside articles were to be brought in they would delay proceedings. His Honor said that it all appeared to be about one particular article, and the defendants had withdrawn it and said that it was untrue.

After further argument, His Honor said that lie could not see that the outside articles we re admissible, as plaintiff had pinned his action, on a specific article, and defendants had replied with a specific something else'. Mr. Johnston contended that putting aside tho question of libel, and turning to the question of wrongful dismissal, it) was necessary for IPs Honor to understand the whole position.

His Honor held to his former view, saying that .the matter hinged round a- certain article, an apology, and the plaintiff’s-refusal to publish it. Plain tiff had evidently beep, dismissed because ho refused to allow the defendants to .publish an apology in their own paper.

Mr. Nolan objected to the nature of Mr. Johnston’s opening. iHis Honor >said that it would be time enough to object to the prior articles being taken when it was attempted to have them put in as evidence. Ait the present time Mr. Johnston was merely opening his case. Mr. Johnston was proceeding with bis opening remarks and dealing with affairs at the hospital. His Honor said that he did not feel inclined to be drawn into the local squabble, beyond what was necessary as between plaintiff and defendant company. Continuing, Mr. Jphnston claimed that the articles took up the attitude that reform was necessary, while the opposition paper claimed that everything was all right. It was afterwards seen that the reforms were evidently necessary, as they were-carried out. Counsel quoted from a letter published in December, written by the .chairman of directors. ; His Honor said that he was. not going to listen to all these things in an opening. What Mr. Johnston could do would be to tender these, letters as .evidence,. . and if lie (His Honor) refused to admit them, then' . -W v.;././,

the matter could, if -counsel liked, betaken to the Court of Appeal. Air. Johnston : That is just-exactly what we do not want to do. His Honor said that lie should have thought- that plaintiff had no right to refuse to publish anything that the proprietors if the paper wished to insert. Mr. Nolan’s objection was quito right, and ho (His Honor) did not see what ho had to do with articles other than that of 23rd, referred to. He objected strongly to be drawn into local squabbles, and did not intend to he so drawn. , Continuing, Air. Johnston again referred to the series of articles apart from that of the 23rd.

His Honor interrupted, that he could still not see that he had anything to do with these articles. Air. Johnston said that he would tender them as evidence.

His Honor: Very well, you can do

Counsel read extracts from the paper at length, and also a letter from the directors, expressing strong disapproval of tho tone of one of the, articles. This letter, he claimed, had not been received by plaintiff. Plaintiff attended a meeting of* the directors, but heard nothing of any disapproval, and later .received an apology for insertion, in the paper, and with it were instructions that there should be no comment on. it.. Plaintiff refused to publish this apology, and received a copy of a resolution passed by the directors, calling upon him to at onco publish the apology. Plaintiff, in reply to this, forwarded his resignation, and later -wrote saying that on tho advice of his solicitor (Air. H. J. Finn) he desired to withdraw his resignation. Later still, after a short lapse of time, plaintiff received a. notification from the directors, dismissing him instantly, on the ■grounds that he had refused to obey the instructions of tho directors. To this letter plaintiff replied that lie did not think that the directors were justified, and that lie would hold tho company responsible. The delay in bringing the action had been unavoidable owing to the absence of a witness for the plaintiff, who was out of the country. -*

At the conclusion of counsel’s address, there was some question of the procedure to be followed in the calling of evidence. His Honor suggested that counsel might come to some agreement in the meantime. The hearing will be resumed at 10 a.m. to-day.