The West Australian Thursday 26 January 1899
ALLEGED LARCENY. THE BOWSER CUMPSTON CASE.
The hearing of the charge of larceny of furniture, etc to the value of about £1,000, preferred against Louis Bowser Cumpston by Daphne Cumpston, his wife, after several formal adjournments, was continued at the City Police Court yesterday, before Mr. A. S. Roe, P.M. Mr. Purkiss appeared for prosecutrix, and Mr. Ewing for defendant.
Daphne Cumpston, re-called, gave details concerning various articles of furniture, their value, and by whom and where they were purchased. By Mr. Ewing: She had never been living with her uncle and calling herself Mrs. Venn. She had never lived alone with Simmonds, her uncle, in her life. She had a bank account, but did not know she had one at the Commercial Bank. - She had never had a bank account before her marriage. She had but little money previous to har marriage. She had got money from her uncle. Her husband had never paid £1,900 in one sum to meet her liabilities. The sum of £1,900 had been paid on land that belonged to her, and which had been resumed by Government.
At this stage the further hearing of the case was adjourned till Tuesday afternoon next.
THE CUMPSTON CASE. THE MAGISTRATE'S DECISION.
At the City Police Court, yesterday, Mr. A. S. Roe, P.M., delivered his reserved decision in the case of Daphne Cumpston against her husband, Louis Bowser Cumpston, whom she charged with the larceny of £1,000 worth of furniture, etc. Mr. Roe said :-This is a criminal information, laid on behalf of a wife against a husband under section 12 of 55, V. No. 20, and before sending the case on to a jury I must be satisfied: 1. That the goods alleged to have been taken were the bone-fide property of the wife. 2. That the parties were not living together at the time of the taking.
3. And, thirdly, that the husband had not taken under any honest assertion of right, or colour of right, not being a colourable pretence to obtain possession. On the first point I find that there is very grave doubt as to the separate ownership by the wife, and a large portion of the goods claimed
by her seemed to have been purchased by Mr. Simmons, and he alleges given to Mrs. Cumpston ; but on the other hand we find that all the goods sent from London were sent to the defendant, and no letter or other document is produced saying that they were for his wife, and in this connection defendant alleges in his statement that they wero bought by Mr. Simmons with defendant's money. There is also a letter from the wife from London, from Queen Anne's Mansions, undated, as I have only the second and last sheet before me, and the whole tenor of this portion of the letter goes to show that the things were not sent for the separate use of the wife. Touching the payments for the furniture, Mr. Simmonshas spoken to several payments, but, on the other hand, defendant has produced vouchers amounting in all to £79 2s. 9d. This amount added to the value of the articles sent out by Mr. Simmons, and which do not appear, as I have said, to have been sent for the separate use of the wife, make up nearly the full value placed by the wife on the furniture and fittings. There is no doubt that it has been clearly settled that any articles, wedding presents or others, that are presented to a wife separately are her separate property. On the seeond point-I havs no direct evidence that the parties were not "living together" within the meaning of the proviso to section 12 of 55 Vic, No. 20, The mere "fact of the wife being absent in Victoria does not, in my opinion, exempt them from that proviso. The wife says she has not lived with her husband since the 24th April last. The husband and it is provided by seotion 12 that he is a competent witness in proceedings of this nature says he has never been separated from his wife. Failing this direct evidence, the wife is expressly barred under section 12 from taking these proceedings, for they are, of course, taken on her behalf. On the 3rd point I find that, looking to the absence of reliable proof that the goods in question, including the piano, were the separate property of the wife, the defendant has produced vouchers and receipts amounting to the large sum of £729 2s. 9d., that the furniture, etc., was insured in the name of the defendant as far back as the 3rd December, 1897, for £700, and that it has riot been proved, or attempted to be proved, that the wife had any separate estate of her own. I can come to no other conclusion than that defendant had a colourable right within the meaning of the case of Reg. T. Wade, referred to by Mr. Ewing. A few articles are claimed by Mr. Simmons as his personal property, and these, I am sure, defendant will abandon any claim to. I am of opinion that in the face of the evidence no jury would convict the defendant on a criminal charge, and that the proper course to have been adopted by the wife in this case was to have proceeded under section 17 to have the question of the ownership settled. I have the less hesitation in coming to a conclusion as proceedings under section 17 have already been commenced, and the wife will then, have her opportunity of proving here separate title to the articles or any of them. Meantime I think, although I have no power to make an order, that defendant should make no attempt to dispose of any of the goods pending the result of the summons already taken out under section. The information will be dismissed, and defendant is discharged.
The West Australian Thursday 16 February 1899