THE MAUNGATAPU MURDERS.

TRIAL OF THE PRISONERS. SUPEEMB COUBT. Weditesday, September 12. [Before his Honour Mr. Justice Johnston.] CRIMINAL SITTINGS. Punctually at ten o'clock, his Honour the Judge entered the Court-room, accompanied by the Sheriff, and Mr. Poyntcr, Resident Magistrate, and took his scat on the bench. The Grand Jury were then called, and consisted of the following gentlemen: — Henry Baly, John Wallis Barnicoat, John Beit, Henry Beitt, Francis Blundell, Augustus Septimus Braithwaite, Charles Hunter Brown, Herbert Evelyn Curtis, Arthur Collins, Henry Goulston, William Charles Hodgson, Frederick Huddleston, Alfred George Jenkins, Dugald Little, James Townsend Low, James Henry Levien, Chai'les Muntz, James Watkins, and Nathaniel Edwards (foreman). THE JUDGE'S CHARGE TO THE GRAND JURY. Me. Fobeman and Gentlemen oe the Geand JUEX — The occasion of our meeting together at this extraordinary Sitting of this Court, is but too notorious. Great crimes have been committed within this district, and great excitement has naturally arisen on the discovery of those crimes. The natural instinct of Belf-preservation, which is called the first law of nature, must necessarily exercise a vast influence on the feelings of a community ; and it would require the exercise of a great effort to overcome this feeling of our common nature. But it is one of the highest triumphs of civilization and religion that, without ignoring the existence of our human passions and human instincts, they guide and control those natural feelings, so that their legitimate exercise shall lead to the welfare and general advantage of the community. The ' feeling of revenge has been called wild justice, I and any system of philosophy which would ignore that feeling as a natural instinct, exercising a certain amount of influence, would be based on erroneous principles. But, as I have said, it is the triumph of civilization that it guides and limits its action ; and, when the first expression of indignation at great crimes is over, that civilization enables us to approach their final investigation in a tone of calmnes and reason. A distinguished writer on jurisprudence has recently said, respecting our criminal jurisprudence, " viewing it (the English Criminal Procedure) as a whole, it would be unjust to deny to it the praise of being a generous, humane, and highminded system, eminently favourable to individuals, and free from the taint of that fierce cowardice which demands that, for the protection of society, somebody shall be punished when a crime has been committed." In a wholesome system of procedure, time is afforded to allow of the cessation of the feeling which great outrages create, and for the discovery of all available evidence, to trace every species of fact tending to establish the guilt or innocence of persons charged, or to discover the persons on whom rest the strongest suspicion of guilt. And, no doubt, it is a wise course which eschews precipitation on the one hand, and at the same time does not allow lapse of time to exhaust public patience, or to diminish the means of establishing the truth. Now, gentlemen, his Excellency's advisers, actuated, I presume, by this consideration, resolved on proclaiming a special sittings of the Supreme Court in this district ; and I think I may congratulate you and the country at large, that we are now able to proceed to the discharge of our duties at this time. We must take all proper precautions in such grave affairs as we are here to consider, lest the eye of reason should be jaundiced by prejudice, or dazzled by passion, or the arm of justice should smite wildly and without discrimination. Having said thus much I shall proceed to notice the cases which are to come before the Court. The first case to which I shall direct your attention is that of four persons named Burgess, Kelly, Sullivan j and Levy, who are charged with the murder of four other persons, viz., John Kempthorne, Felix Mathieu, James Dudley, and James De Pontius. Now, although the murders of these persons were committed about the same time, yet each murder is a separate offence, and must be the subject of a separate indictment. I am not sure as to what will be the form of the indictment, but I should suppose there will be three or four separate indictments, that is to say, that each of the prisoners charged with these crimes will be indicted for the murder of each man killed. I understand that leave will be asked from the Court to allow one of the parties charged with the crimes, although he was not committed for the offence — I mean Sullivan— to go before you to give evidence in the case. Now> on the assumption that an accomplice will be offered as a witness in the case, I may, without travelling into the details, do my best to make you aware of the leading features of the case ; and I will ask you first to consider the case apart from the evidence of the accomplice. It may be that his evidence will not be required, that there will be sufficient proof without the evidence of the accomplice. The case without his evidence stands thus : Four people are seen alive on the day of the murder, on the road from the Pelorus. They were seen by one witness taking refreshments, at a place called Franklyn's Flat. Two other persons saw them leaving Franklyn's Flat, a very short distance away from it on the Nelson side. The time of the day will perhaps not be shown by either clock or watch, but by circumstances of distance and the like. Shortly after the men were seen by these witnesses, another person, named Bown, passed along the road near to the spot where the dead bodies of the murdered men were found, and he saw nothing of them. Another man, named Moller, also passed along the road at the same place, and neither did he see anything of them. They were thus traced to within a very short distance from the place where the bodies were found. The four other men who are charged with the murders were seen on this road on the same day, going on to Nelson, and they passed along that road before the murdered men, but were not seen on it, and did not arrive in Nelson until after the men had disappeared ; and as there is no road leading off i this road, no persons could go off the road unless they

went into the bush. The bodies of the four men were found sometime afterwards at a distance of thirteen chains off the road. All the evidence in this case is in favour of the probability that these men are the murderers. Without the evidence of the accomplice, there is evidence that these people occasionally showed themselves in town, but they were careful to avoid much publicity. They were all four travelling together, and, sometime previous to the murders, went to the Wakamarina; and on the morning before the murder of the four men, they were seen returning to Nelson, leaving the place, as one of them said, in disgust at doing nothing. While on the Waka* marina, one of these four was detached to Deep Creek, and he lived in Mathieu's hotel, and there he must have heard of the intended movements of the four men who were to leave Deep Creek. The four prisoners were apparently short of funds when they left the West Coast to come to Nelson ; for they borrowed money in order to make up the amount of their passage money. They were in Nelson on the day following the murders, and on subsequent days, and were found spending money very freely, and afterwards, on being apprehended, they were found denying all connection with or knowledge of each, other, and ultimately they gave false names. Those in charge of the case on behalf of the Crown will likely ask leave to place before you the accomplice, who has been examined as a witness before the Resident Magistrate. The doctrine regarding the evidence of an accomplice is this : In strict law a man may be convicted on the evidence of an accomplice, without- any corroborative evidence, but Judges usually advise jurors, and juries generally follow the advice, not to convict unless the evidence of the accomplice be corroborated by that of other witnesses in important parts, not only as to the offence, but also as to the identity of the parties who committed it. With regard to Sullivan's evidence, that was taken before the Magistrates, where he was liable to be cross-examined; and if his statement then was the only one made by him — made, after having heard all the other witnesses in the case— it was to be considered how far he was actually or probably adopting the evidence he had heard, and concocting a story to agree with that. But I am informed that this was not the first statement that he had made, and that he had made the same statement to the police long before the time when the evidence was given before the Magistrate. This makes a considerable difference in the matter, and rentiers his statement less open to objection than if it had been made for the first time after he had heard all the evidence of the witnesses. You will hear his statement from his own lips, and be able to ascertain whether it is in keeping with truth or probability, and whether the time and place and other circumstances are corroborated by other witnessest No doubt Sullivan, in making this statement, or confession, was actuated by motives either of obtaining pardon or reward, for he knew, as you now know, that he was not only charged with complicity in these murders, but also in the other murders ; and therefore he must have had interested motives in making his confession. It is true that the highest authorities in England have recently ruled that it is wrong to accept the testimony of accomplices until after they have been acquitted or convicted, and sentenced, so as the witness may be free from the influence which the hope of pardon or the fear of punishment may have upon him. But in a case like this, when the accomplice is charged with several crimes, and his evidence is deemed necessary in one case, it may be impossible practically to apply the principle just mentioned Regarding the other case of murder, that of James Battle, all the four prisoners would be charged with that offence. This case of Battle stands thus : Sullivan has not given evidence in this case ; but he has made a confession which will be given in evidence against him. This confession stands in a very different position from that of the evidence he gave when he was liable to cross-examinstion, and was then giving evidence against other persons. This confession respecting Battle's murder is admissible only as against himself. You will also be asked to take into consideration the judicial statement made by the prisoner Burgess before the Magistrate, and in which you will observe that while Burgees appears to admit his own participation in the crime, he throws the greater part of the guilt on another. I am bound to tell you, and you cannot shut your eyes to the fact, that his statement is not made on oath, and he was not liable to cross-examination ; and that therefore, though the statement is evidence against himself, it is not evidence against any one else. Battle's case therefore stands thus : — There is Sullivan's confession and Burgess' judicial statement, and by both of which each of these two 'prisoners implicates himself. Ido not intend to go any further into the minutiee of these cases. I have indicated their bearings, and no doubt you will yourselves go into the cases in a spirit of fairness and intelligence. His Honour concluded by saying that an Act had been passed this session of Parliament, allowing the foreman of a Grand Jury to swear the witnesses they may examine, and that this course would be followed to-day, which would save a good deal of the disturbance to the proceedings that arise from swearing the witnesses in the Court. His Honour also mentioned that the proclamation for holding this session was so worded as to allow of taking any cases which might be ready to go on with. There was only one case of this kind, that of a man taking his neighbour's purse, and it would be convenient to take this case first. The Grand Jury then retired, and shortly afterwards returned with a true bill against Henry Hall for robbery from the person. EOBBEBY PEOM THE FEB9ON. Henry Sail was charged with having, on the 20th of August last, stolen from the person of Frank Flowers a pocket-book, containing £40 in bank notes, and two watch-guards. The prisoner pleaded Not Guilty, and waa undefended by Counsel. The case was tried by a petit jury, and on the prisoner being informed by the Judge that he had a right to challenge six of the jurors, he challenged the first five who were about to be sworn in, and the case was then proceeded with. The Cbown Pbosecutob stated that both the prisoner and the accuser had been staying together at the London Tavern, on the Haven-road, and on the 20th of August, after going down to the Port together, they returned in a trap to Trimble's Masonic Hotel. It appeared that Flowers had at the time £40 in notes about him, and two watch-guards, and, on awaking from sleep in the Masonic Hotel, he found that his pocket-book, containing these notes and the chains, had disappeared. Mr. Cottier, the landlord of the London Tavern, coming up to the Masonic Hotel, saw a pocket-book in Hall's pocket as he was lying asleep in the kitchen, which he re* cognized as belonging to Flowers. A constable waa

sent for, and the prisoner was searched, and from his pockets was taken nearly the sum in notes lost, tho possession of which ho* had denied. Tho lirst witness ho would cull waa Frank Flowers, being sworn, said : I am a labourer residing in Mas.suero Bay. I was residing in Nelson on tho 20th August last. I was staying at Mr. Cottier's, tho London Tavern. I know the prisoner. Ho was stay ins at tho samo place. I saw him on the morning of tho 20th August. We went down to tho Beach together. When I went out I had about £-10 in a pocket book in my pocket. I thought that there were six £5 notes and ten ones. I had them in mj breast pocket. I had two watch guards in the pocket book. I was sober when I went out in the morning. I went down to the beach in the morning. I was not sober. I had beon getting drunk at the beach before I returned in the 'bus We were both together, Hall and myself, but I don't know whether ho was drunk too. When I came to myself, I was at Trimble's Masonic Hotel. The last time I remember having the pocket book was in the morning, at tho beach. When I was woke up, I was asked by Mr. Cottier whether I had my pocket book, and, feeling in my pocket for the pocket book, I found that it was gone, together with the money and watchguards [produced and identified]. Ido not recollect giving the pocket book to anyone to keep. Cross-examined by prisoner: I do not recollect asking yo,u to take care of the pocket book. I don't recollect your taking me into Trimble's. Hugh Cottier, being sworn, said: I keep the LocKtaa Xarccn> Ox&rca-raacU I &iwer aha prosecutor and prisonor. They wore both residing in my house on August 20 lost. I went to Trimble's about ono o'clock. I saw the prosecutor there asleep in the back room. I woke him. I did not see tho prisoner in the same room. I saw him in the kitchen. When I roused Flowers up he said he had lost his pocket book. I wont to the prisoner in the kitchen. He was asleep and I woke him up. Ho seemed very tipsy. When I went in I saw Flowers'e pocket book sticking out of his pocket. I knew it by sight before. I took the pocket book and gare it to Flowers. There was no money in it and no watch guards. There were no bank notes in it. The prisoner said he liked my impertinence taking the pocket book out of his pocket. He said nothing more then. I took the pocket book to Flowers and prisoner followed me. The prisoner said, " What is all this bother about ?" I told him that Flowers had lost all his money, and said that he perhaps knew something about it. He ■aid the pocket book was just as he found it. Peter Levy, being sworn, said : I am a constable, in Nelson. I was in Trimble's Masonio Hotel between one and two o'clock. I saw the prisoner there. I asked him if he know Flowers had lost hie money, and he said " Yes, but that he knew nothing about it." I went into the kitchen, and brought prisoner into the adjoining room. I asked him to give up what monoy he had on him. He refused. I told him I would search him. He then put his hand into the left-side pocket of his trowsers, and took out three £1 notes, and Bs. Od. in silver and copper. I said, " Was that all the money ?" He said " Yes, three times. I took off his coat, and in the breast pocket of the rest I found tho rest of the money. About a minute elapsed between this. I put my hand in his trowsor's pocket, and found the watch-guards. He said he was the owner of a schooner here, and that I should hare £40 or £50 There were two watchguards. Mr. Trimble and another man were present when I searched him. Prisoner : Was I asleep or awake when you found meP Witness : You were asleep. Joseph Trimble, being sworn, said: I keep the Masonio Hotel, Nelson. I was at my house when prisoner was arrested. I heard a conversation between Lory and prisoner prior to the arrest of the latter. Tho constable tola him to turn out what he had, and he turned out four one pound notes and a shilling. He said that was all he had, and that was his own. Tho constablo told htm to undress, and he would search his clothes. The constable then took out £35 in £5 notes. Prisoner said they were his. The prisoner was drunk, but not blind drunk. The statement of the prisoner, taken in the Resident Magistrate's Court, wo* then read. The Cttowtr Prosecutor then addressed the jury. His Honour briefly summed up, telling the jury that the whole case lay in tbo question, whether or not the prisoner intended to feloniously appropriate the notes, or whether he had taken them with a view to keeping them for Flowers whilst drunk. If the jury felt satisfied that the former was the case they must return a verdict of guilty ; on the other hand, if the evidence enablod them to come to another conclusion they would acquit the prisonor. The jury, without retiring, returned a verdict of Guilty. Hugh Cottier, being recalled, stated that he had only known the prisoner for a few weeks, and that he was ignorant of his antecedents. Rheinhold Titi, being sworn, deposed to the character of the prisoner, whom he had known as captain of a Government steamer on the Waikato, and afterwards as captain of the Gymnotus. He had always borne a very excellent character. Robert Johnson, being sworn, said he knew' the prisoner when in command of the Government paddle-wheel steamer Sturt, and he had borne a very good character. Tho prisoner was sentenced to three months' imprisonment, with hard labour. The Court then adjourned.