SUPREME COURT.

Gisborne Standard and Cook County Gazette, Volume IV, Issue 575, 26 February 1891, Page 2

SUPREME COURT.

[Before His Honor Mr Justice Conolly.] ALLEGED ABSON. On Tuesday morning John Bryant Lane was charged with, on 3rd October, setting fire to his house with intent to defraud the insurance company. Tha following jury ware empanelled Messrs A. Brown (foreman), Oocktey, Matthews, Wills, Hastie, Law, J, Boland, Pools, O, Lewis, Henry Tucker, Dinan, and Ourtie, Mr Nolan, Orown Prosecutor, conducted the prosecution, and Mr DsLautour defended, In opening the case Mr Nolan said the offence with which prisoner was charged was very easy of perpetration and very difficult to detect. The evidence was all of a circumstantial nature, but such that they felt it would be sufficient to convince the jury. The taking ot evidence was only concluded shortly after five. The evidence wee much the same as that taken in the lower Court. The fire took place on the night of Wirth's Circus, at which accused had been present, and the firebell rang some time afterwards, about midnight. The prosecution sought to fit in these times so as to discredit Lane’s own stories and point to all the circumstances indicating that he himself had committed arson. He had stated that the place was burned down before he returned home, In cross-examination by Mr DeLautour, Mr Barnard, agent for the insurance company, said he was not aware of his own knowledge when the circus came out. Accused had made a verbal claim for the insurance, and witness told him to come on the following Saturday, because he had net a form upon wbioh the claim could be paid. But he telegraphed the claim, and the money wae forthcoming by the mail, but prior to that accused had been arrested. The case was resumed, after the evidence had been taken, at 7 o’clock, when counsel for the def-nee began his address to the jury. Mr DeLautour said the case wae a very difficult one in some respects. Counsel for the Crown had at the strongest put it that they were inclined to the opinion that accused burnt the house, but the jury would have to be more than inclined to such a belief—they would, to convict, have to be convinced that Lane burnt down the house, and with intent to defraud, Ho maintained the issue was not whether or not Lane told the troth to Sergeant Oarlyon, or Constable Reddell, but whether be actually burnt that house. They would thus see why he had not taken up their time io crossexamining the witnesses, as he really did not qar? ep far as the case was concerned whether 57 "nt th? truth had been spokan. Assuming thaVLane was no! *»Uta4tb« truth, he would put it to them that conclusively L"” WIS still no evidence against the accused. In fact it Lane's statements were taken out altogether they would have no evidence whatever beyond the fact that the house was burned. I His Honor said he must direct the jury that the statements made must weigh with them, thought not as conclusive evidence.] From the evidence of the neighbors Laue was a hard working, respectable man who had worked away there for five years. Living as he was alone, his only child away at the time, there might be suspicions, but he was settled on the place in comfortable circumstances, only owing the small amount over the mortgage, while the land was worth £l6 or £l7 an acre. The new house wae insured for £l5O, and was the property of the accused. There was an insurance of £5O on the old house, which Mr Nisbett said was worth £BO, They found Lane settled there with no embarrassments whatever, working to discharge the small mortgage. Up to the very day of arrest he had paid his way, and there was no motive whatever for him to'burn the bouse down for the sake of £95, when he had money and was in want of nothing. It wae unreasonable to suppose that be could have arranged the fire before he left, about seven, and it not have burned until after eleven, or as the police put it after twelve, The prosecution bad endeavored to show that Lane had time to burn the place down after he got Home. But they had the evidence of Stuckey, who had gene straight home after tho circus, and noticed the glare on entering the reoreation ground, by which period Lane had not time to get home. Nisbett's statement also agreed as to the time, he noticing the fire just as he got home, so that if Lane left at the same time, and had to go some distance further, it would be impossible for him to get home in time to set fire to the house, at that early period. The prosecution must either set up that accused set fire to the bouse before he left, and that it took five hours in its incipient state, or that he rode home at such a rate as to light the fire before Stuckey, leaving at the same time, had reached the recreation ground. All that was incredible, and the only ground upon which the former suggestion could bs made was that they had found a box whioh they supposed to be a flro raiser's plant, and this was found, not in the house, but with the furniture that had been put away for probeotion. The difficulty that wou'd bo found was the accused’s statements, and that was his difficulty. Lane had

gone next day to Mr Barnard, the insurance agent, who had suggested to him to make a total claim, and he did so. He (counsel) was not going to suggest that all the furniture stated was burned—he believed it was not—but if accused gave way to the suggestion of the insurance agent and made an exaggerated claim, that was not burning the house. When interviewing the police hie mind would naturally run in the same groove, but that was no proof that he had burnt the bouse. They all knew that when men of that kind got cornered on an untrue statement, they would get into quite a labyrinth iu trying to excuse themselves. The duty of the jury was only to decide whether accused had actually burnt the house, independent of the statements he had made. The evidence was rather against a sudden removal of the furniture. It wee quite fair for them to assume that some of tho furniture hud

been removed after the renewal of tho policy, but sufll lently before the fire to relieve the affair of any suspicion that he had burnt tho house. The constable, on being pressed, would not say there was anything to guide him to suppose that the big bed had boon suddenly taken down. It was quite a different thing removing the furniture for the purposes of protection in tho winter, to removing t for the purpose of defrauding tho insurance company. Constable Reddell's evidence on that point was clear that accused had said he had removed the furniture for protection. The only thing of a suspicious nature was that there were sledge marks in the swamp, but the witness, when asked, knew nothing as to where the sledge was, and he suggested that it was quite possible for those marks to have been made by the sledging of potatoes. Apart from the man’s statements—call them falsehoods if they liked—there was nothing to suggest that the accused was either a principal or accessory in arson. They had to be very careful of unconscious biases, caused by the tongue of illwill, that might have been pursuing this man in such statements as made about his conduct to his dying wife. They had no knowledge of the state of the house since July, so there was no evidence as to what condition the furniture was in. They must not allow it to weigh with them for a moment as to the statements made by the accused. The circumstances pointed to the fact that the tire took place before the bell rang; the other alternative, he suggested, was altogether incredible, that the place had been set fire to by slow fire. It would be absurd to think that a man who was going to set fire to his place would do so just when the people were going home from a circus, and thus proclaim the thing in that public fashion. As to Mr Barnard's statements it must be evident to them that he was not* good witness, and seemed to think he was on his defence, and in the one thing atone in which he ought to" be exact on account of his profession be was out five chains. He (counsel) oared nothing about the inventories produced—they must only give their verdict against aooused on the certainty that his hand, and his hand alone, had set tho fire that burned the house.

Mr Nolan said the Crown only placed a case before them because they believed that the aooused was guilty. It would bo unnecessary for him to go through the evidence to show that the majority of the if ndt the whole of them, made by Lxtae were false. If they believed the statements of the witnesses for tho prosecution they must be convinced that there was no furniture in the house, and the accused's statement that he had gone down to the small house to dress was absurd. Nearly the whole of tho articles which accused told Constable Reddell were in the house that was burned were found in the new house. They had the evidence that the oirous was over by a quarter past ten, and tbs police told them it took them a little over hplf an hour to walk to Lane's. Mr Biohardson, on theoiher hand, had waited until after the concert portion of the circus, and had seen the fire on the Whataupoko as he was driving home, Was it likely that Lane, it ho had gone home and found the place burned down, would have gone to bed without telling the neighbors about it, instead ot just keeping the thing quiet, until be went down to see Mr Barnard ! Counsel then went on to give examples of false statements made by the accused. He alluded to a statement that accused had told Mrs Scott not to send for him when be knew his wife was dying. [Mr DeLautour wanted to know what this had got to do with the charge against the accused, Mr Nolan contended that he was addressing the jury on the evidence. His Honor; I can’t stop Mr Nolan ; I may refer to it later on 1 Counsel went on to contend that accused had a motive to burn down tbe house, as his oonduct ebowed that be wanted tbe insurance money, and the house being situated in an orchard and not being one that could be let, the accused would be likely to prefer having the £6O insurance money in his pocket. The theory of the furniture being removed for protection would not hold good, as the new house was not completed and there were no windows in it. Taking all the circumstances into consideration be thought there would.be sufficient to relieve their mind from any reasonable doubt. His Honor said the prisoner was charged with maliciously setting fire to a house with intent to defraud. They must be satisfied on those points, and therefore it was material that all evidence showing such intent should be considered as evidence, though not as conclusive. He was almost surprised that the defence seemed cqmpalled to admit that the statements were untrue, and yet say that was no evidence of intent to defraud. The feels being doubtful, evidence of character was important, and what became of the character it the counsel were almost compelled to admit that accused had been deliberately making many different statements with iotent to obtain tbe insurance money ’ There were three things to consider, the circumstances of suspicion arising from the false statements, then the opportunity, and thirdly the motive. After what had been said by tbe prisoner’s counsel his task was much reduced—probably cotineel had acted wisely jn not contesting such clear evidence, and preferring to say that be did not care about it. Si! then analysed tbe evidence, There was no suggestion whatever from Mr Ohrisp or Mr Barnard that aooused should claim for a total lose, it was clear the statement had been first made by the aooused himself. Both Bergeaht Carlyon and Constable Reddell bad given their evidence in an extremely satisfactory way, and be doubted whether the counsel would have gained anything by trying to shake that evidence. On the day after the fire accused had gone to three different people and made the same statement, that all his clothes bad been burned. It appeared to him from the evidence that it was absolutely frapoesibU that any portion of the goods the prisoner stated had been destroyed had really been so destroyed, and many of them had been clearly identified. Tbe suggestion of counsel for the defence that suspicion had really fallen on the prisoner on account ot tho talk among the women was disproved by tbe evidence itself. Tbe position of the aooused in regard to the two bouses was suspicious —it wae an extraordinary thine that a solitary man should furnish two houses. It was immaterial when the goods were removed, the only important point under that head being as to whether or not the goods were in the house. Ae to opportunity, the preponderance of evidence was tha t tbe fire began nearly an hour before the bell rang, and they might fairly conclude that the flre had started about a quarter past eleven, probably earlier. There was no distinct evidence that the prisoner was at the circus, but from the evidence it wae fair to assume that that he had been there. If prisoner could have showed that he stayed till after khe concert it would clear him from suspicion, hut it was clear from statements he bad made, that unless he had stopped on the way home—whioh had not been attempted to be shown—be must have been in the neigborbood at tbe time of the fire. As to the motive, there wae no doubt it appeared absurd, the total 8* ln being £75, and the man being unembarrassed

in any way. But it had been almost conceded that he had made statements with intent to defraud, and the other step was a very small one further. Then if his motives were small how much smaller was that of anyone else ? He had no reason to suspect anyone, though he said there were bad boys about, but from the position of the house it was hardly possible that it could be otherwise than wilfully burnt down. Although Mr Barnard had made a mistake as to the distanoea the plan seemed to be accurate enough, and the distance that tha house wae from any open way tended to prove that it had been wilfully burnt, He agr.esd with the counsel for tho defence that the suggestion that the house had been set fire to before seven was absurd. In giving tho verdict against the prisoner they must be satisfied that the prisoner set the house on fire.

The jury retired at 7 minutes to 9 and returned at 9.15, agreed upon their verdict. The foreman, in answer to tbe usual question, replied, Guilty, Mr DeLautour said Hia Honor had knowledge of time in custody—four or five months. His Honor referred to the second indictment, and Mt Nolan said he did not intend to prosecute. It was arranged that the esme jury should try the second charge, and that the prisoner should plead Not Guilty 1 do evidence te M

offered by the Crown. This was done, and prisoner found Not Guilty. The prisoner, on being asked if he had anything to say why sentence should not be passed npon him, replied, “No!” His Honor, addressing the prisoner, regretted that he had forfeited a good character for what was paltry gain. He would sentence him in this case as if he had been con I victed on the other indictment, and that the arson was a mere ingredient of the crime. In some cases arson was a very serious crime, touching on murder. That was where buildings were adjacent, and lives were endangered. It was not so serious in this case. The sentence would be that he be imprisoned in Auckland gaol for 12 calendar months. CIVIL BUSINESS—YESTERDAY. In the cases Rangimatina v. Duff Brothers, and Kainga and others v. Duff Brothers, there was an order that the legal points should be argued, and as that had not been done, the cases must stand over. It was arranged that the case of Harawera Pahura v. G. J. White and W. W. Brown, claim £250, due on contract, should be taken first. Mr Rees appeared for plaintiff, and Mr DeLautour for defendants. The jury were Messrs Mark Davies, C. P. Daviee (foreman), R. Hill, D. Dinan. Mr DeLautour challenged W. Law, C. Tarr, C. A, Brown, J. White, J. A. Boland, F. Clayton. Mr Rees challenged C. F. Lewis, 0. B. Hubble, Edmund Chrisp, J. O. Barnard, A. Hansen. Mr DeLautour also challenged Mr Dinan. Mr Rees said the cause must be alleged after the sixth had been challenged. His Honor upheld that view. Mr DeLautour : We have nothing in the world against Mr Dinan, excepting that he bad a rather long day yesterday. (Laughter.) His Honor: , Oh, I think we can let him come then. (Laughter.) Mr Dinan then took his seat, and this made up the jury. Mr F. Jones was sworn in as interpreter. Mr Rees said the facts were very simple, the cause of notion arising out of a bush fire. The natives entered into a contract to cut a quantity of grass, and during the contract a bush fire took place, On the Monday, Jan. 20th. Mr Brown's foreman, Mr Goldsmith, had tried, and failed to set the bush fire ‘wotng, bet next day it was lighted by some boys acting under Mr Goldsmith’s instructions, and. from that fire, although the natives tried to fight the fire, the seed was burned. The natives had out about 350 bags Of seed containing from seven to eight bushels. The plaintiff was looked to as the principal in regard to the contract. His Honor said it struck him that the contractor had nothing to do with the case, and that the contractor had nothing to do with the burning of the grass seed for it VM immaterial to him. Mr DeLautour said the ground he was going to take was that the astlon had been wrongly brought and ought to have been brought on tqrt. Hu Honor said no doubt parties wanted ihp evidence beard—it seemed to him that the oase was founded on the allegation that the fire had destroyed the grass seed, and the defendants were responsible to the plaintiffs tor what had been out. Mr Bees, continuing his opening remarks, When the natives went to Goldsmith and complained he eaid it had nothing to do with they must go to the boss. The evidence would show that 2,500 bushels ot seed had been burned, the price for saving being 2s a bushel. The defence raised was really an admission that the grass had been cut, that it had been destroyed by fire, but that neither defendants nor their servants caused the fire by negligence or otherwise, The plaintiff deposed that be was to get 2s g bushel for saving grass seed from ths property of Messrs White and Brown. On the Tuesday White and Brown’s bush was set fire to by Joe Mulligan, a half-caste boy, and other persons. Joe was employed by the defendants. He saw them set the fire going, and it continued to burn, spreading from where it waslightedbythe boys, and continuing until Saturday, when the grass and other things were burned. The distance from where the fire was first lighted to where the grass was was as far as from the Court to the Turanganui bridge. Fifteen of them tried to put the fire out to prevent it burning the grass. The fire came from several different places, but all originated in the one blaze made by the boys. He bad not spoken to Goldsmith as to the fire. Witness had given portions of the seed to be cut by other people —in his own part Ithere were forty bags cut, besides twenty bags not full, and nine stacks of unthreshed grass—each stack would give from three to four bags. There would be four, five, and six bushels in each sack, and seven bushels in some. Cross-examined by Mr DeLautour: He first made the arrangement about the grass teed in November, with Mr White. The seed was to be weighed at the station, about as far as from the Court to the large meeting house across the river. He was to be paid on the seed being taken to the station and weighed there. The saving of the seed was divided among two nartiee—begot one half and Hone White, fipother native, the other half—he could not answer as to the exact areas. He divided his own part into eight lots among other natives, Momena Pawai, Hore Potaka, Paratene Komars, Beta Hainga, Hirini Tawera, Henare Hahina, Neri Moukau, and himself. White was to eome and take the seed to the station, and-pay each party for what they had cut. Nine persons were working on his eighth piece. He could not tell the measurement of his plot,—they had their plots marked off by lines. Bam Goldsmith knew those lines. Women and children were included in the Dine persons he had said were working bis own plot. On the Tuesday when he saw the fire lit he wss in the middle of his grass patch. He could not see Wallace’s bush from where he stood—there was a high bill between that and the other bush. A track went up the hill, that being the way the natives went to Tokomaru. There was no river separating the firn when he saw it and where the grass was. He saw the smoke at a long distance off, and then he saw Joe when he came up dose, lighting the bush as he went along. He saw them on both sides of the stream. On the Tuesday some of t the grass was burnt—some of the cocksfoot (which he had nothing to do with). The fire that day was about as far as the Maori house from his seed, the ryegrass. The fire was going np the hill, in the opposite direction to that in which Joe Mulligan was going. The whole of the felled bush was burned on the Tuesday, excepting the smouldering logs. He did not see Goldsmith on that day. He did pot know whether Wallace's bush was burned on the Tuesday. He was on the boundary on Saturday, and saw Wallace’s bush burning from White’s fire; he could gee from the way the boys were going that the bush was fired from defendant’s fire. He saw Mr Steele, Mr Wallace’s manager, on that day, bnt did not see him firing. The fifteen men he had with him came from where they were working, and were going to Tokomaru for food. They had been camped on the ground on that day, Working at the grass—it was a very hot day. When he said the bush was burning on Wednesday, Thursday, and Friday, he meant it was burning slowly, and the wind rose on Saturday, and made it burn strongly. To Mr Bees : The fire was exactly the same one all through. His Honor said they ought to be clear as to amount of the claim, the plaintiff claiming for the Whole, although plaintiff said Mr White Wav to pay tbs other seven. Mr Hee* said plaintiff was the responsible party and the defence did not dispute the contract. His Honor said it appeared to him that he must direct the jury that the plaintiff was paly entlt’ed to sue far an eighth, Mr Rees said it was admitted that plaintiff Was the one contractor. Mr DeLautour said there was no admission M to the are*. Mr Rees said the payments were really to prisoner—they were only acting according to the custom in such oases. His Honor said if there was any contract at all it seem to him there were eight distinct contracts. ■ Mr Rees contended that was not so, and in reply to a question the plaintiff said that no contract was made by Mr White except with him. Mr Rees i Who was to see as to the accuracy W the account ? — Witness: Mr White Bud each person who had a i?ie«t

In reply to His Honor Mr Rees said the sub-contractor would not be able to sue. His Honor .- I am not so sure of that. Mr Rees said there would be a great mulitiplicity of actions if such were the case—the custom was for the leading man to take the responsibility, divide the work, and settle among themselves as to the respective shares. His Honor said it appeared from the plaintiff’s own statements that there were eight distinct contracts. Witness, continuing, said White told him be could have the grass. He acted for himself. Mr White spoke to the others. Mr Rees said he would later on ask Mr White about the contract, which the plaintiff appeared to be getting confused over, as to the sevenths and eighths. In reply to His Honor witness said that he and his men cut the forty full bags. They were cut on his own eighth part. His Honor : According to this all the cut seed was stacked on the eighth. Mr Rees said each witness would give evidence as to what was stacked on their special lot. If his Honor decided that there were eight separate contracts the case must go on a different basis. His Honor said he thought he must hear the case through. Mr Rees asked would the defence admit that it was all one contract ? Mr DeLautour said they admitted there was one contract, but they said nothing as to ares, holding that the damages claimed were excessive.

To Mr DeLautour: Some of the full bags were sown and some were not.

Noka Tawhera, a female relative of the plaintiff, had seen Mulligan on the Tuesday evening, when he said he and his pakeba companions had set the bush on fire. It was the same fire as burned until Saturday. Paratene Kaumura deposed he had a piece of the land to cut the seed from ; he had got it from Hori White, the Maori, and the plaintiff. He had asked Mr White, the defendant, for A patch of the grass, but he got his piece from one of the parties who had the whole contract. All the witnesses gave corroborative evidence as to the fire. Paratene had 38 bags on his own piece, there being seven bushels in each bag; eight stacks not threshed, containing about three bags each, and three bags not stacked. This was on his and Peta’s piece, he having given a portion to the latter.

—To Mr DeLautour: When ha saw Mr White that gentleman had consented to his getting a piece trona the plaintiff. White would pay witness, according to the agreement. To Mr Bees: Sometimes contracts were made by. particular natives, who cut them up, and the European paid each individual—it was a case of everyone for himself, Another witness gave aa the reason why they had not earlier attemped to save the grass because they bad no orders from the boss— Mr Goldsmith. The fire came from Mr Wailass’s bush, over the hill, Mr White would pay for the seed; the custom was to go to Mr Goldsmith to get the seed weighed, and then Mr White paid for it. Fire came through the cocksfoot, but it was not very strong. His Honor Mid he would be obliged to direct the jury that the plaintiff could only recover damages tor the grass on his own eighth. Me Roes was inclined to thick that Mr White himself would say he knew nothing of the others,

His Honor said so tar as the evidence went—it might be contradicted—the plaintiff showed he could only claim on his own part, Mr DeLautour said he made no concealment as to the line of defence they were setting up. In reply to Mr Rees, His Honor said he could take no notice of custom—hemust gunfine himself to the case. Mr Bees said such a defence would only lead to a multiplicity of actions.

Mr DeLautour said that had nothing to do with this case—they were quite within their own rights, Mr Rees called Mr White, one of the defen. danto, who said he had made no formal con, tract with the plaintiff, but had allowed him to out the seed, agreeing to give him 2s a bushel on delivery to the satisfaction of Mr Goldsmith. He told plaintiff Goldsmith would tell him where he could cut the seed from. He left all further arrangements with Mr Goldsmith—he had himself arranged with Hori White, The other natives went and asked witness what price he was giving, and he told them 2s, and each party had got stores frem him on account of the part they had taken from Harawera. He bad made no fresh arrangements with any other natives after sending Harawera to Mr Goldsmith. Joe Mulligan was in his employ at the time of the fire, Mr DeLautour : Paratene was mistaken in saying none of his plot was with Hori’a. He had only to pay the plaintiff and Hori for their own portions. Goldsmith and some of the natives informed him about tfie other natives taking sub-contraets.

To Mr Bees;- He did not say to plaintiff that he understood the other parts were let. Samuel Goldsmith deposed that he let a contract to Harawera, but did not make arrangements with any other person for the same piece. The qommon thing was if a native had too much of his own for him to give others some—the first native was responsible for getting it gut, To Mr DeLautour: Harawera got permission to sublet; he did uot tell witness afterwards, but he knew where all the natives were working. In such a case he took the seed just from the different parties, paying the party-who brought the seed. Was not sure whether he told Mr White about the arrangement. In such oases the original man made no profit from the labor of the others. To Mr Bees : If the seed were damaged or wasted he would look to Harawera to make the loss good. Mr Bees asked His Honor for a ruling on the point as to the nature of the contract. His Honor thought it was clear that the contracts were distinct.

Mr Rees pointed out that Mr Goldsmith said if any of the seed were wasted fie wotlld look to Harawera. His Honor : Then I think he would look in vajn, Mr Rees said then he would confine himself to the damage to plaintiff’s particular share.

In reply to Mr Rees, His Honor said so far the evidence was plain as to where the fire same from.

Mr Rees called Joe Mulligan, who deposed that on Tuesday, January 6th, Mr Goldsmith gave him instructions to fire the bush, and he accordingly went where be was told, near the creek. He knew nothing as to the subsequent course of the fire. Three others in the employ of Mr White were also lighting fires on that afternoon, The fire was sure to go over the creek, because ths twigs of the trees were interlaced. He was packing on the Saturday when the seed was burned. The fires they had lighted continued until that day, but he could not say whether it was the same—he saw the stumps still burning after the grass seed had been destroyed.

To Mr DeLaptour: He had followed up the stream; he did not know which way the wind was blowing. Another native gays evidence that the boys had been warned that the fire would burn the grass, but they said it bad nothing to do with them, as they were acting under instructions. The fire that burnt the seed came over the hill. Rawiri, an employee of White’s, deposed that on the Friday morning he told Goldsmith that he was afraid the natives would lose heavily by the fire. Goldsmith told witness it was none of his business—he was only a servant. He afterwards saw Mr White, and told him he ought to have some consideration for the natives. Mr White said they would be heavy losers too. Then, said witness, the natives’ debts had better be burnt too. White said the debts would live. The witness left the box quite disappointed because the Court would not hear all the good evidence he had to give; the best, he said, was left behind, After other evidence bad been called, all tending in the same direction, His Honor said it seemed the real question was whether the fire was caused by the negligence of defendants, and whether the damages claimed were excessive—according to his view they of course were. Mr DeLautour wanted the point settled aa to whether Mr Bees oould amend * question of contract so as to make it one of tort. His Honor rpled that there should be such amendment as to enable the real question to be decided, He would allow Mr Rees to amend co ns to submit that the fire was caused by the action of defendants or their employees, The case was then adjourned till 10 this menifigi