SUPREME COURT.

Auckland Star, Issue 153, 1 July 1887, Page 5

SUPREME COURT.

CRIMINAL SESSIONS. This J>ay. (Before His Honor Mr Justice Ward). Unlawfully Wounding. —Hoera Mimiha, one of the plaintiffs in the Ohinemuri alleged rape case, appeared in the dock charged with having unlawfully wounded Charles Wight at Ohinemuri, by cutting off a portion of his ear. It will be remembered that when last before the Court the prisoner pleaded "not guilty," and evidence for tho defence was to have been adduced this morning. —Mr o'Meagher, counsel for tho defence, however, has withdrawn the plea of "not guilty" and, having pleaded "guilty" instead, addressed the Court in mitigation of sentence. He also asked that judgment should be deferred, pending the issue of the trial of the prisoner and other natives for perjury, arising out of the prosecution against Wight. He also applied for the admission of the prisoner to bail. ■ Mr Thos. Cotter, who appeared for the prosecution, opposed the application. After some argument His Honor deferred his decision till two o'clock.

Calendar Exhausted.—Tho Crown Prosecutor announced that the calendar was now clear, and waiting jurors were therefore discharged from attendance. The Oiiinewi'u Perjury Case.—The Crown Prosecutor applied for leave to present to the Grand Jury at the next Criminal Sessions a fresh indictment for perjury against Alex. Campbell, without having to go again through the preliminary of an inquiry before the Magistrate, involving the taking de novo of all the depositions. The evidence would be precisely the same, atad the country would be put to unnecessary trouble and expense if the case i had to be gone all over again. -Mr F. Earl, counsel for Campbell, opposed the ! application, submitting that (1) His Honor had no power to allow the Crown to enter a nolle prosequi after the prisoner had been given in charge of the jury and evidence taken, but should have directed an acquittal ; and (2) that assuming the nolle prosequi to be correctly entered, it operated as an acquittal. Mr Earl on these grounds contended that His Honor would not be taking a proper course in sanctioning a fresh indictment, as the plea of autrefois acquit would certainly bo successful. Counsel supported his argument by quoting Retina v. Kellet 1 " Victorian Law Times," page 5 ; Regina v. Allen 1 " Best and Smith Reports,'! page 850 ; " Wharton's Criminal Law " (American) ; and Chitty's Criminal Law." — His Honor said that the case of Regina V. Kellet seemed very strong, and contradictory of the dicta of some of the text books. It appeared to him that, leaving out of the question the case of Regina j v. Kellet, tho authorities seemed to support the entering of a nolle prosequi, but whether that did not operate as an acquittal seemed doubtful.—Mr Williamson having replied, His Honor thought it better to adjourn the argument to permit the learned counsel to more fully look up the American authorities, which appeared to contain many cases bearing upon this p6int. Tho question did not seem to be controlled by statute. - Argument adjourned accordingly. The Arson Case- -Application for New Trial.—Mr Brassey intimated to - His Honor that ho intended to apply for a newtrial in the case of Violet McPhee, convicted and sentenced for arson, on the ground that one of the jurors who determined the case was disqualified for acting through not being a naturalised British subject. ° As, however, he had not yet had time to prepare the necessary affidavits, he wished to know when it would be convenient for His Honor to take tho argument. -In answer to His Honor, Mr Brassey stated that the juror whom he held to be an alien was Mr John Levy.—lt was eventually agreed between the learned counsel that the matter should be mentioned again on Monday, when His Honor would be better able to see how his time would suit. He remarked that as the Chief Justice was coming to Auckland he might probably have the benefit of his opinion -on that point; _ • ; .". Divorce. Howard v. Howard and Kyle. — Mr Brassey appeared on behalf of the petitioner, and applied under Sec. 17 of the Divorce and Matrimonial .Causes Act, 1567, for a decree nisi dissolving the marriage. — The petition averred that the petitioner, Frederick Howard, a steward, was married to the respondent, Jessie Eliza Howard, then a spinster, on the Oth December, 1877, by the Rev. Alexander Macdonald,. at Auckland; that after' marriage they cohabited together here and had issue, four children, viz., three ; boys and a girl ; that at various times between 1882 and date the respondent had, both at Mahurangi and in Auckland, committed adultery with the co-respondent, Robert Kyle; and that he believed that respondent and co-respondent (an engineer) were now co-habiting at Wellington. The petitioner therefore prayed (1) For dissolution of the marriage; (2) tho custody of his three surviving children ; (3) and that Robert Kyle might be ordered to pay the costs of this proceedin"-. Mr Brassey went on to state the pomts of the evidence he intended to adduce ; also that the writ had been eery* l on the respondent and co-resp'on' Wellington.—Frederick Howard, i tioner, was then called, and the/ certificate was put in evidence, v' deposed that ho was a Auckland. He married December, 1877, her maiden | Jessie Eliza Bull. They lived/ andJVt&hvirang;.,' and had four f

1882 his wife left him and went to Wellington along with the co-respond-ent. She returned about twelve montha afterwards, and came to him to ask for one of the children. He objected,' saying that she was living with Kyle, and had had a child to him. She. admitted that she had, and then left him. He had had the custody of his children since his wife left him. and he had not b. ought this suit sooner for want of means. He knew of no reason for his wife to ha?e left him.—Mrs Frances Louisa Traill, midwife, residing in Welling-ton-street, Auckland, gave evidence as to having, on the 19th October, 1884,----delivered a woman, styling herself Mrs Kyle, of a female child. The woman was living with a Mrs Forrest in Coburg-street, Auckland. Witness did not know the petitioner.—Margaret Forrest, bookfolder, deposed that in 1884 she resided in Coburg-street, and in that year she let three rooms to a person calling herself Mrs Kyle. She was living with a person named Kyle, who she said was her husband. They occupied the one bedroom. The petitioner was not the person. The woman called the man with whom she lived Robert. On the 19th October, 1884, she was delivered of a female child, Mrs Traill being the nurse. The mother told witness that it waa her second child; she understood by Kyle, and the woman remained in witness's house from August 1884 to February 18S5. Witness did not then know the petitioner. —Mrs Annie Katrina Nicholson, wife of John. Wm. Nicholson, master mariner, of Vei'iion-street, Auckland, deposed that she knew petitioner and his wife. She had known tho wife about 12 years. After leaving Mr Howard, Mrs Howard went to service at the Old House at Home Hotel, on leaving which she went to live with Robert Kyle in Coburg-street. Witness was present at the birth of respondent's female child in October,lSß4. She then called her. self Mrs Kyle. Respondent told her the child was Robert Kyle's.—This was the case for the petitioner, and His Honor granted the decree nisi asked for, and said that the petitoner, as the father, was of course entitled to the custody of his children. It was also ordered thai the costs of the suit should be paid by the co-respondent. The Court then adjourned till 2 o'clock. Unlawfully Wounding.—On the Court resuming at the hour mentioned, His Honor .delivered judgment upon the application to defer sentence in the case of Hori Mimiha.—. After stating the position of the case, — His Honor went on to say that in the absence of any affidavits to support prisoner's statement that further evidence was forthcoming he would not grant the application.—The prisoner was then sentenced to three months' imprisonment without hard labour, and nine months with hard labour.