SUPREME COURT.

Gisborne Standard and Cook County Gazette, Volume IV, Issue 493, 14 August 1890, Page 3

SUPREME COURT.

The Conrt resumed sit;iog at 10 on Tuesday morning, when His Honor Mr Justice Conolly took h's seat. .The first ehsrge called on was that of sheep killing with intent to steal, preferred against Para’ene Turangi, and Te Whare Turangi for being an accessory. Prisoners pleaded not guilty. Mr Nolan, Crown Prosecutor, had with him Mr Theo. Cooper (of Auckland), and Mr W. L Rees appeared on behalf of the prisoners. The following jnry were empanelled : Messrs J. Fisher, T. W. Bilham, E. V. Luttrell, T. O’Connell, R. Boyd, G. Williams, G. Robb, T. Knipe, F. Tiefjin, E. Hooper, A. M. Gray, T. Weets. Twelve jurymen were challenged by counsel for either eide. B. Cooper was a few minutes late, and was excused. Mr Cooper in opening the case, pointed out tfae difficulty of getting proof in cases of this kind, also the magnitude of the offence in a large district like this. He analysed the circumstances of the case, and thought when they had heard the evidence they would judge the case to be clearly proved. Ihaiah deposed that he was at present employed by Mr Clark. Did not know what the month of May is, but remembered when the present charge was preferred. Paratone and he lived at Te Kupanga. When be bad finished working at grass reed he lived at Whakato. Had not been there long when a meeting took p’ace. After the meeting was over he went and lived at Taha’s place, and two weeks later went to Kupangi,

where he saw they had mutton for food. They had mutton for a whole week, but he had not s*en it ki ! led until he saw Paratene kill a sheep After sunset P.iratene was miss ing, and going out he noticed him on horseback galloping in a zigzag direction. When they came up he noticed that be was driving sheep through the thistles, and he had driven them so as to exhaust them. Retired for a few minutes, and on looking again saw Parateue carrying a sheep. Paratene threw the sheep Inside the fence. Witness then resumed to the house, but going out later on be followed Paratene and saw him killing and skinning a sheep. Saw him dig a hole and throw in the retuse. Witness then went back to the house, and Paratene returned shortly afterwards, and ordered witness to leave, saying that his companions were children, and they used too much* firewood. Went to a small house near by to sleep, and in the house saw a sheep hanging up. In the morning saw Paratene cut up some mutton, put it in the pot, and saw th- m afterwards eating it. Was present when Baird and Stewart dug up a sheepskin and head—they were those that Paratene had buried. To Mr Rees : Was certain that was the head of the sheep that Paratene killed—knew it by the ear. Was about a chain away when the sheep was killed. Did not see the head then, but •aw it when it was shown to the pakehas. Had borrowed Te Whare’s horse when he wanted to go and see his father. Sold ’’the horse. Did think it was a strange thing to do. (Laughter). Had never done such a thing before. He did not desire to go and steal some wine, but Te Whare had proposed to do it. Had no disagreement with the prisoners about some girl. The people at the pah had no quarrel with the witness, but they quarrelled with themselves about the girl. H»d made propositions to her. After returning from selling Te Whare’s horse, told him a lie—that his horse was at witness’ father’s place. The lie was found out, but they did not punish him. Had expressed his sorrow for what he had done. Had been accused of stealing other things, such as pigs, corn, ducks, but did not admit his guilt. Knew of nothing else he had been accused of stealing. It was only in fun when he made propositions to the young girl, Rakaknu He only sold the horse for fun. (Laughter.) After leaving Kupuanga had not made threats to bring some evil upon Paratene and Te Whare. He had threatened another native, Te Reh etai. Had not told Taha he would bring evil upon the acccased, nor Martini Rangi. When Paratene rolled the sheep through the fence, witness saw that its legs were

tied—he was then about three chains awav Anybody on the Papatu road would have seen Paratene riding after the sheep, catching one, and tying its legs Left Kupuanga of his own desire— was not turned away. Could not fix the date, but knew the moon was at abont half, increasing. To Mr Cooper: Had been tried before a Maori committee for pigstealing. Was I exonerated, and the accusing persons fioed. Whare Torangi, one of the prisoners, had persuaded him to go after the wine, and Beihutia bad taken the wine from Mr T. U’Ren’s, at Whakato. Had changed Te Whare’s horse for another horse, and the one he had got in exchange was at Tologa Bay. Te Whare knew that. William Baird, shepherd, working for Mr Clark, deposed : Stewart and witness had accompanied the previous witness on July 1, and bad dug up a rh»ep’s head and skin from a piece of ground in the potato plantation. By the earmark ha knew that the head was that of one of Mr Clark’s sheep. The hole would be about three feet deep. Could not say how the sheep had lost ita life, wheth a r by being killed or from natural causes. Took the head to Mr Clark, who gave it to Constable Beddell on July 3. When he went back to the settlement on July 4 the paddock had been ploughed up, which was not a reasonable thing to do at that season of the year. The weather was very wet. Had found another head and remains of a sheep. To Mr Boes : A sheep might occasionally get through to the Maori’s place. If one were at the Maori whares there was a manuka fence between that and where the sheep was buried. The sheep conld not be seen lying on the ground from the gate nearest the whares. Complaints had been made of Mr Clark’s sheep being worried by dogs. To Mr Cooper: Conld see the sheep if one was standing outside the Mori ground. To Mr Bees; Between the two paddocks there were briar bashes five feet high, and also fruit trees. Ihaia, recalled: Paratene put the sheep through the fence at the slip panel. In cross-exameiation Mr Bees pointed ont that the witness had given two distinct positions as those at which he had been been situated when the sheep was put through the fence, and he said he had misunderstood. John Stewart, employed at Mr Clark’s station, corroborated Mr Baird's evidence. Constable Beddell gave evidence as to the arrest of Paratene, and the discovery of the skin snd entrails, and also another lot. Ths paddock bad been ploughed up. There was a good deal of traffic on the Papatu road. To Mr Bees: The ploughing struck him as remarkable at that time because the paddock was just a swamp. John Clark testified that it was hie brand that was on the head and skin. The natives bad no sheep in the paddock adjoining his, and be bad never given them authority to taka bis sheep. To Mr Brea: If accused were guilty would like a conviction in the ease, but certainly not if they were not guilty. Mr Cooper said that closed the case for the prosecution. His Honor : Do you contend, Mr Cooper, that you have any case against Te Wharu ’ w Mr Cooper a, he would have advised the jury that there was no case against Te Where ; he wondered why a true bill was found in the oase, but that having been done he thought the proper course was to leave it until that point. At His Honni-g suggestion he assented that it would be welfto recommend the jury to acquit Te Whare, and this was accordingly done.

Mr Bees said he had several witnesses to oall, but he did not iu end to call any. Mr Cooper then addressed the jury, ably summing up the points of the case. Mr Rees followed, pomting oat that ’he only real evidence against the accused was that of Ihaiah, whom he referred to in very strong terms, as ou<- who had acknowledged himself guilty of horsestealing, eating stolen mutton, drinking stolen wine, etc. No twelve sensible men, he felt confident, would convict a man on such testimony—on the testimony of one who had made statements r that he could see sheep being killed from a don in which he canid not possibly see His Honor said the whole case rested on the paint as to whether they could rely

upon Ihaiah’* evidence. A jury was entitled in law to accept the unsupported testimony of an accomplice, but in practice something more than that was required. Ihaiah’s own evidence showed him to be an accessory after the fact, ft was a suspicious circumstance that he had not given the information until about a month or six weeks later, when he entered the employ of Me Clark. However true it might be that the sheep was stolen, the only evidence against Paratene was that of the boy, and it was for the jury to say whether they could convict on the evidence of that boy. They should first be satisfied that the evidence was reliable. If they believed Ihaiah they should convict the accused; if they disbelieved him they should enter up a verdict of acquittal. After a short retirement the jury returned. The foreman stated that they did not think Ihaiah’s evidence was sufficient to convict the accused, and therefore a verdict of not guilty was returned. TUB MURDER CASE. Argument was taken in Chambers on Tuesday afternoon, concerning Mr Rees’ application for a change of venue in the murder case. Affidavits were put in proving that some of the jurymen had made expres sions of opinion to the effect that they were convinced that B’ack was guilty of the crime alleged against him ; and also that it would be impossible to empanel a jury in Gisborne that would not be so biassed. The lodal papers were put in and the reports read and commented on to show that the public mind had been influenced to the prejudice of the prisoner, the strongest point in this respect being a statement published by the Herald, purporting to have been made by W. Parkinson.

Mr Rees put his side of the matter in a very forcible light, and after the points had been carefully reviewed, His Honor ruled that a change of venue was desirable, and the case would be set down for September 2nd at Auckland. On the Court opening at ten yesterday morning Hi* Honor informed the witnesses in the case that the cognizances they had entered into would hold good for Auckland, and they would have to see the Registrar as to the proper time to leave for that place. The Court was then adjourned to eleven, when it was arranged that the civil business should come on. CIVIL BUSINESS. The first case taken was that of John Henry Glynn, as executor of H. C. Glynn, deceased, v. C. D. Bennett, trustee .in Karaitiana's estate, claim £750 interest on mortgage. The names of A. Karaitiana an i J. Co’eman had been added to tha list of defendants. There was also another case of the same nature, claiming £525 interest on mortgage.

Mr Cooper (with him Mr Watson) appeared for Mr Glynn ; Mr Nolan for Messrs Pitt and Bennett; and Mr W. L. Bees (with him Mr Lusk) for Messrs Karaitiana and Coleman. The case wad practically defended by the lat ter, it being alleged that the former trustees, Messrs Pitt and Bennett, on the advice of their solicitor, Mr Finn, had borrowed the money for purposes other than had to do with the estate, and therefore the responsibility should not be pat upon 'he estate. The following j ury wereemoanelled :-v-John Fisher, John Stewart, T. Knipe, D. Reid (foreman), R. Little, T. Fannin, F. Tietjen, A. M. Gray, G. Williams, J. Robb, D. Courtenay, A. Devery. Mr Cooper challenged Messrs R. Cooper, W, Williams, A. McLean, and W. Breignao, and Mr Rees challenged Messrs Perry and S. Parker.

Counsel consented to the second case being derided on the merits of the fl-st case. Mr Cooper said he would submit thit the defence set up by John Coleman and A. Karaitiana wsr irrelevant, and he claimed the right to put the will and mortgage deeds in as evidence. It was for His Honor to decide before the case went before the jury whether the defence was relevant to the case. Mr Rees objected to Mr Cooper having the right to begin, which rested with those who had the affirmative issues. The will and mortgage deed were admitted —all the formal points were admitted. There was no contests upon the rights of the will or the mortgage deed—they were simply put in for the information of the Court. All the facts in them were admitted, but there were certain other facts they added which they claimed would entitle them to a verdict. All the affirmative rested upon him (Mr Bees) and he contended that he was entitled not only to begin the case, but to close it. Mr Cooper claimed that he had a ri.’ht to put in the will and the formal documentary evidence, and that was all that was necessary for him. and upon that he intended to move that tbe defence was irrelevant to the His Honor ruled that Mr Cooper had the right to begin. Mr Cooper then opened the case. He said the action was one brought by Mr Glvnn, to recover interest on £5OOO advanced on a mortgage on the property of Karaitiana. They claimed £750, including interest. Mr Glynn had advanced the m mey and not been paid. All that he (Mr Cooper) had to do was to put in dooumen arv levidence, the deed of mortgage in estate to Harrv Carr Glynn, an admitted copy of Karaitiana‘s wi'l. in which probate had been granted’ in 1879 ; a copy of the order appointing Messrs Pitt and Bennett trustees in place of the late J. Sheehan in the estate of Karaitiana. That was the plaintiff's case—it was admitted that the £750 was due if the mortgage was a good mortgage.

Mr Nolan said he had nothing to say to the jury. The money had been borrowed and was owing. Messrs Pitt and Bennett had been prevented from acting by an order taking the affairs of the estate out of their hands.

Mr Rees said he was now in the position that he not only had his defence, but the plaintiff did not deny it. His Honor said he would have to prove his case. Of course he could mike addresses to the jury. Mi- Rees explained to the jury that Mr J Co* email had been recently appointed trustee, and that Mr Albert Karaitbna was now of age. Messrs Pitt and Bennett offered no defence, but Mr Albert Karaitiana alleged new facts that he prayed to be enquired into, Mr Finn had been acting fnr. both Karaitiana and Mr Glynn and in 1885 had arranged for the sum of £3OOO to be borrowed by the, estate from Mr G yon, not for use in Karaitiana’s estate, for which there was no necessity, but, Mr Albert Karaitiana alleged, to use for private business purposes of Messrs Pitt and Bennett and also for the use and benefit of Mr Finn. [Permission was given to alter tbe statement of defence so as to include Mr Finn’s name.] In the year 1885, Mr Sheehan having died the Public Trustee was appointed, but on representation of Mr Finn Albert Karaitiana’s mother was advised to go to Wellington, and as guardian to her son got Messrs Pitt and Bennett appointed trustees, which was done in 1885, when there was £1328 to the credit ’of the estate. Mr Finn had advised nearly all that was done in the estate. Counsel gave a list of moneys that had been borrowed at different dates, and said he would prove that tbe money was not required for the estate, and alleged that the private banking accounts had shown large deposits to credit about that period. Of £3OOO borrowed 05 December 31 of the year in question, Mr Finn, it was alleged, had given in his own cheque for £2.959 some time later. On March 31 another £5,000 had been borrowed, of which £5OO had been paid into the Bank. In September £3,000 had been borrowed. The whole of the moneys, it was alleged, had been paid into Graham, Pitt and Bennett’s account, with the knowledge of the solicitor in the estate. He did not blame Mr Glynn at all, and what the jury had to decide was whether the facts were correct. All this money was borrowed on Mr Finn’s advise. From time to time Mr Finn had cheques given him from which deductions bad been made amounting to £4OOO above the taxed costs. The mortgage deed cited the , fact that there were considerab’e sums owing by the estate which made it necessary to borrow, but all that was owing was a claim for annuity <£1500) to Pete Karaitiana. He would show that this money was not necessary to be borrowed, and all the parties concerned knew the estate did not want the money. The only right the trustees would have to borrow money was for ths payment of just debts. Mr Oooper said he could adduce facts to prove that Mr Glynn was under no obligation

in the matter. His H inor asked whether Mr Rees intended to submit anything of tbe kind. Mr paid that even if misnpproprintion were proved he would not contend that Mr Glynn knew anything about it. He would endeavour to prove that the money had not been borrowed for the purposes set out by the mortgage. He would call Messrs Finn and Bennett. Mr Finn had virtually conducted the duties of a trustee. Mr Pitt knew little of the matter, the business bring conducted by Mr Bennett. He would put accounts before them, and they would then be able to form their opinion as to whether the money had been borrowed for the purposes of tbe estate or for private purposes. He then called upon Mr Finn. Mr Cooper contended that Mr Rees had not submitted anything that would enable him to call evidence. It would be improper to go into evidence that was irrelevant to the issue. He suggested that the jury be allowed to go until 3 o’clock, and they could argue the matter in the meantime. Even if Mr Rees proved all his facts he would contend that it would not help him.

Mr Cooper said Mr Rees had charged Messrs Finn, Pitt and Benuett with conspiracy to defraud the estate. He was instructed that the facts alleged by Mr Rees were incorrect, but for the purposes of argument he would go on the assumption that the allegation was correct. He then went to argue on Lhe law points, contending that the trustees had full power in the matter, and that no point that could be raised bv Mr Rees would affect Mr Glynn’s right to the amount claimed. Argument on the legal points was continued until the luncheon adjournment and resumed at 2 o’clock. Shortly after resuming it was agreed, on Mr Rees’ request, that an adjournment should bD made until 10 this morning, when argument will be resumed. The jurymen were allowed off until 11.30 to-day.