THE BOWDEN CASE.

Auckland Star, Volume XXV, Issue 303, 20 December 1894, Page 5

THE BOWDEN CASE.

ioun d Guilty of Perjury.

Sentence— Twelve Months' Hard Labour.

THE DEFENCE.

>_. Mfll of Abraham Bowden on a charge lliurv. alleged to have been committed l film the Police Oourb before Mr H. Rfftfieroft, S.M.,on the 29th of August, I the hoarine of an assaulb case in which Rn»don was defendant, was continued after 1 ffeOt to press yesterday, before Hia Bdnbr Mr Justice Conolly, and a special fit Tole, Crown Solicitor, prosecuted on loUif of the Crown, and Meaara Campbell ,nd Cotter conducted the case for the de- * The following additional evidence was piven by the witness Given :— By His Honor : Witness and Dawson had lean bad friends tor 12 or 14 yoars, so had Ln bis lather before him. jJjh Honor : That being the case can you Kploin why Dawson put it on Bowden ? Witness : Well, the man was drunk. He flidn't know who struck him. The Foreman : W hen you were approachlug Dawson, how did you strike him 'I Witness explained by signs. The Foreman : Then you whip went the buck of his head. Witness: Ye 3, I suppose it did.

This closed the evidence for the defence. Mr Tole said he proposed to call Home fitnesses to give rebutting evidence. The grab witnesa would give evidence with regard to the man who had spoken to JJencloy. flis Honor said be disapproved of any rebutting evidence being called on that) question. If he allowed that any number of witnesses might be called to give evidence A3 to the credibility of those whom bo (the Crown Solicitor) would bring forward. Mr Tole said in that case he would next propose to call rebutting evidence to show that Dawson was sober and not drunk, when tho assault took place. Mr Campbell objected to the proposal, and after some lengthy argument His Honor declined to allow tho evidence to be given. ' His Honor said, these -witnesses should {lave been called at the proper time. t\lr Tole said he would then call aomo witnesses who would prove that from a certain time to a certain time Bowden was Dot near the Rink on the 29th of Angu&t.

Michael Keenan, cab proprietor, on being calledj Ivjr Campboll objected to ! hia evidence being taken, as ha had been iv Cb'irt during iha be&rintf of the case. In raply to Mr Tole, witness said ho had been in the Court at different times during tha case, but he had been aubpoanaed as a witness only yesterday moraine. LI is Honor said in that case the evidence win admissible. . : Witness, examined by Mr Tole, said ho f::«3 near fcho Skafcimj llink on tha night of iio29th'of August between ten and eleven. }l .isaw Owen McGinn there with his cab. tYitness'pasaeu tha Exchange Buildings in a :our-wheeler at twenty minutes pasb nine, Eiid proceeded at a walking pace to the Skating- Rink. He" remained about the Kink till ho got a fare, which would be Bbout half-pasb ten. , Bpwden did not come near the Rink up till the time that witne33 lefb. By Mr Campbell: Witness lefb ]U9b a litit le while before the Rink was over. The people were coming out, bub witness was uncertain whether tho performanca was over then. 1 Owen McGinn, omnibus driver, said he Waa outeida tha Skating Rink with his bmnibu9 from 9.30 till the rink was over, ynich was about 11 p.m. Up to that time Bowdon did not come near the Rink so far as witness noticed.- Witness did nob see Sartreant there, ,bub ha b»w him on what w.ia known a3 " Bovvden's stand," opposite Milne and Choyce'a, after 11 o'clock. £y Mr Cssmpbell: Sergeant) might have bean there without witness seeing him ; findßowden also. The Foreman : If Bowden a cab were there, was it possible for you nob to sea it?

Witness : I don't think co. Mr Tole said he now proposed bo call evidence to rebut that given .by tho boy Enringfcon, who statod what took place ab i the bottom of Wyndham-etreot the morning after the assault. His Honor, on looking up the boy a evidence, said he considered thab there was nothing to robub. Mr Tole said if His Honor ruled so he had no more evidence to offer. Mr Campbell commenced bo address the jury ab 5 minute? to 4 o'clock on the evidonce taken, and spoke for upwards of an hour. Mr Tole then addressed the jury till »• quarter to six o'clock. His Honor said he would like now for the jury to inquire among themselves as to the coarse they wished to pursue. It would take him some time to sum up—fnl'y an hour—and as ib was now very near 6 o'clock, he would leave it to the jury whether the Courb should adjourn for an hour or till morning. The jury obtained leave to retire for a few minutes to consider, and on returning, tha foreman said they were desirous the Courb should adjourn till 10 o'clock this

rooming. • ' ■ The Court then adjourned.

THE SUMMING UP.

His Honor, in summing up, said the case in some respects was very peculiar. I here was such a vasb amount) of confcradictory evidence tbab ib appeared to him to be necosaary for him in the discharge of his duties that he should read or remark upon a crreater parb of the evidence than is usually the case. No doubb the jury had given due attention to the addresses of the learned counsel on both sides, and he had nadoubb they would aIBO give due attention 'to the remarks be himself would address to them. Bub after all* they must rely principally upon the ovidenco taken before them, and be satisfied beyond all ' reasonable doubb before they decided npon their verdict. If they were nob satisfied beyond all reasonable doubb bhab the accused was guilty, they would have no hesitation in acquitting him, bub if they were satisfied thab the offence hod boen brought home to him by two credible witnesses, then they would probably decide otherwise. Some remarks had been tnade to them in the address of the counsel for the prisoner on the face thab the case > -tod boen tried by a special jury, and they were referred to fcha memorable Tichborne claimant case. Mr CampbeH said that thab case alone was one to be tried by a special jury. Thab case lasted for something like a year. The aumming-up itself tcok twentyfour days, and ib waa in fact a unoßb unprecedented . case. . Ib was a niisbako feo suppose thab no other cages were tried by speeia! juries. To show the ignorance thab prevailed en this matter, he would mention thab he had been asked this morning whether thia waa nob the nrsb criminal case tried by ft special jury in Jfew Zealand. Even if ib were so he considered ib would have nothing to do with , the question. For hja own part he would like to see more cases triod by special juries. They were usually a body Pf men who from their circumebanQes were more able to consider the value of the Ayidence than other people. Coming bo ths charge he said the charge againßb tUe prisoner was one of perjury, which, as they were aware, meant falsely fa some judicial proceeding. H bha sta^efiaenfc made was false ib did not imply per-

jury, bub ib wag necessary bhab the witness o should know thab what he swore waa false, n Th 9 counsel for. bha prisoner wenb a ji hobletoofar when he made the abatement w Shab if" every witness who made a- false w statement were tried for perjury there1 it would be no end oE such cases. There v mighb be differences in evidence even as to a matter of facts, bub ib became perjury h only when the person awore what he knew jt to be fals9,|and unles3 ib waa shown bhab ci ha knew ib bo be falee 'ib was nob it perjury. Now, in the present case, fci the perjury waa alleged bo hare c bean comtnibbod in the hearing of an assault s ciae against the prisoner, and there were 6 three or four indictments charging the ac- c cased with having committed perjury in o each of the four instances menbionad there- p in. The principal indictment asserted that a the prisoner swore that he did not strike, or n abbsmpb to strike, Dawson thab night, t. The other other indictments were com- o paratively immaterial, bub ho • would n have to allude to them tis he wenb bhrough c the evidence. With regard to the state- J menb of the defence that the accused did v not go around into torne-atr-'eb ou the & night of the assaulb, ha considered thab $ bhere was not sufh'denb substantial evidence <J to show whether he waa bh&re or nob. & With regard to hia statement thab he did n nob speak to Sergeant .MoMahon, ib was t quite clear thab ha did speak to r Surgeanh McMtvhon, and that he *' s-ivore falsely,,, bub in this instance L Bowden's statement was immaterial. The t jury would observe, however, there was no t ojjoct whatever for the accused to con- a tradict the Sergeant's abatement. The a whole thing resolved itself in this whether c the evidence of thu ono side or the obher was b bo be bsiieved. It was for them to say a which sido<...~^v would believe. In which- r ever way they cSeeided, ib waa quite clear fc than they would also have to decide that c nearly tha whole ot' the witnesses on one side j were also eominibfcing perjury. In their I consideration of tha evidence of both sides o the jury would have bo remember this; that c witnesses are to be believed by weight and t nob by number. If there were two or three { witnesses on one side who could be be- r lievad their evidonca would hav9 to be more seriously conaidered than bhab given by a much larger number on the obher side who were not so reliable. Ib was by the value of tha evidence, and nob by the number of witnesses, the jury should bo guided, and in arriving ao their conclusions they must take into account tho independence of the witnesses. They would also have to take into consideration tha demeanour of the witnesses when they appeared in the box," and the manner in which they impressed them with the denire to speak bhe trubh. His Honor then made a revision of the evidence, which occupiod upwards of an hour. _ Ab the close he said they had now to consider what evidence was against the prisoner. Tho jury had be-in cold by tha learned counsel for.the defonco, ia referring to the ] evidence'of Armitago.and Turner, thab if c fchay gave weight to the evidence of tbeee ( two witnesses as to .what Bowdsn had said n eubsequenb to tho assault they roust also -, fc-\ve equal' weight to what Bowden \ giiid, disclaiming bhe asaaulb, to others j who had also, given evidence. That ] was nob law; Whab a man _ said j to other persons must bo evideuce { jigainsc him, while what, he said in favour ) of himself was nob evidence for him. If he t! wenb to another person and said "I am c puiity," that evidence can be laid against •; ium, and is the strongest possible evidence. •} No one could know whether tho accused , person was guilty or nob so well as r the accused himself, and whnis h9 said t to other persons waa therefore tho r strongest possible evidonca. AM through fi this caae bhe jury musb have aaked themyelvea.tbe question, and he considered the p question was not a difficult one if tho cvi- , uence for tho defence ivere carrapb, Vvhab i was tho motive for Dawaon pursuing Bow- t den ab sucha rate as that stated ?, It they f put it the obher way, and 3aid Chat Bowden £ was firsb and wan pursuing Dawaon, then t . there was somo indirect evidence, j besides direct evidence, that Bowdan f had a motive for following Daw- ] son They had the iadirscb evidence f df Dawson which, Ilia Honor said, they , mighti -take for what ib was worth, thac on ( tbo day after the- assault; Bowden Baid to i some one than Dawson would nob " whoa' { hia hor39 again. Theu there was the cvi- , tlence of Errington, a wibnesa for the de- ] fance, who said thab on the morning of the ) 30th of August, liowden had a converaa- i tion with ot;her3 in his presence. The wit- | ness said, "he waa not sure whether Bow- , den said he won't "whoa" my horse , any more, bub he said something like thab," j Hi» Honor then roferred again to the cvi- j deuce of Armitage and Turner, who he said were clearly entirely unprejudiced witneisea. If that evidence wore true they had a probable sequence of evenbs showing : thab Dawson had given offence to Bowden by calling oub " whoa "to his horae. The accused eaid to these . witnesses thab in consequence of this he followed him, , and struck him, and if they (the jary) could suppose that chat " whoa ' did take place lower down Queen • street, it was reasonable to Bupposo that Bowden should follow him aud jamb him against the kerb at Laud's, as alleged ; and when be wenb before the magistrate he said thab he did pass Dawson ab Lauds. ; How waa the accused going to geb over thab ebabemenb. Further, Armibage appeared to have been a very friendly terms with Bowden, because after bhat particular conversation they had another conversation as to a lawyer. With regard to Turner, this witness spoke to a certain extent in Bowden's favour, because he said thab he (the latter) had given him-in his capacity »s Traffic Inspector-less trouble than mosb people. His Honor thought that there was indeed a great amount of donbb bub here they had bhe man himself in_his sober senses, early the next morning after the assault, telling Turner, and2or 3 days afterwards telling Armitage, than he had done exactly what ho swore m the Court pc did not do. That was the most importanb parb of the whole case. He had taken more time than usual in reviewing the evidence, and he hoped he had nob taken up too much of thab valuable time which they had already given during tbe ease. If, on the whole of bhat evidence, they thouehb the case was made oub againsb the pn»oner, they would have no other course than to find him guilty; b/nb if there w*s a reasonSedoubtasbo the falsity of that ■worn by bhe accused in bhe Lower Court, they were bound to bring in a verdicb for Theiury aetired ab five' minutes to twelve o'clock, and returned exactly half an hour ( afberwarda with a verdict of " Mr^Jampbell said he hoped His Honor would bear in mind in paesing senbence the fact bhab tho offence waslnot committed tor the purpose of carrying oub any fraud, or dome any injury to another; bub thab ib (the periSrv) was commibted in a case in which the prisoner himself was alone concorned, THE SENTENCE. Hia Honor, in pronouncing sentence, said -PrTeoner, the jury find yon guilty S the crime of perjury, an offence which I •■am sorry to- say, is far S frequent ; b«b unfortunately very seldom brought to punishment. I hope the sentence which I am bound to Supon you will be a warning to many o?hen who recklessly give evidence in murte of justice. There are some points wh"ch aggravate the crime of which voV Vve been convicted; bub tl?ere are C#rtsjn othprs which, fortunately for you, tend to mitigate it, ■ p and I shall take both into consideration, and especially the latter. The mosb serious natb of the cage is that you have possibly, not directly, bub indirectly, been the means of a number of obher persons, in yonr employment), principally, oj ia that

of yonr brother, to my mind and to the mind of the jury, having committed perjury here and in the Courb below; and it would be quite right if some of these men were alongside you in this case. The jury in my opinion have done right—no honest and intelligent jury could have arrived at any other conclusion than they did. You have been most ably defended, and the jury have nob hurried to a conclusion. Assuming thab so many people in your employment have been practically found by the jury to have equally committed perjury, that circumstance may be taken as an aggravation of your offence, bub I shall take in*a account the circumstances which tend the other way. In the first place, as has been pointod out by your counaol, which I have already made a note of, the perjury com^ misted by you was not done with the intention of doing wrong to anyone else, but only to save yourself from punishment in the Courb below. Another circumstance is that it was unsuccessful. Justice was nob defeabed. The magistrate vary properly did nob believe your statement there, and therefore gave you your punishment for the oflence, which you undoubtedly committed. Tha third circumstance in your favour is this, thab you have nob .yet'been in the witness-box during ibis trial, and therefore avoided repeating your perjury here. Since tho Acb has been'passed permitting prisoners to give evidence in their defence, I have been pained to see foolish persons placing themselves in the witneß3-box and adding another crime to thab which they hav<i already committed. Well, taking these circumstances into consideration, I cannot help noting the heavy punißhmenb which I am permitted bo pass upon you, but for the reasons I have given I shall not give you the highest) punishment), although tor an offence of this kind, it is in ray powev to give you 7 years imprisonment with hard labour. I warn poisons who may appear henceforth as wifcneasos, to fake notice ot that. However, I shall not pass such punishment, the sentence of tho court is 12 months imprisonment with hard labour, and you must pay the cost of the prosecution.