A LEGAL POINT.

Press, Volume LXIII, Issue 12974, 29 November 1907, Page 9

A LEGAL POINT.

(PHE9B ASSOCIATION TELEGRAM.)

WELLINGTON, November 28

At the Supreme Court to-day a married woman named Annie SThit&ker a7id a young man named Wm. Burford were jointly charged with having conspired to procure abortion in the case of a young unmarried woman. Mr Wilford (who appeared for the woman) raised a point of kw in referenoe to the trial. Under the law, he eubmitted, tho parties clearly had the right to bo tried separately. The leading reported caee on the subject in England was tho case against Gbarles Bradlaugh. The only reported New Zealand ©aso was that of the King v. Gibson and Holroyd. Gounsol contended that if ever there was a case where one prisoner, would be prejudiced by tho evidence adduced against another, it was so in regard to tho female prisoner in tho present instance. There wore pages of evidence, against Burford, which were not' evidence against tho woman, and they all knew how difficult it was for any jury to distinguish between what was legal evidence against the one and not against the other. No matter how clearly and impartially the judge directed tho jury on tho point, it was impossible ibr counsel to absolutely eradioato frotn the mind of the jury the class of evidence that bad been ad>dueed. Hβ had no right to demand that pri_sonors ehould be tried eepa-. rntely, but he asked it as a; concession that tho judge had every right to give,: Air '.Myers. C*aw.n Prosecutor) said ho did not think-this was a case where it wae necessary, that the prisoners ehould be tried separately. They were tried really as , principal and accessory, Mrs Whitaker wae the principal. There was no suggestion that .the male accused was prosent at the'actual offence*; therefore he could bo indicted only ns accessory, and tho second count was put in to show tho relationship between the accused. The whole of the present case Was one story, and he submitted that it was quite easy for any intelligent jury, subject to the direction of his Honour, to consider the evidence separately. Ho was unable to find the "pages of evidenco" referred to by counsel for the defence. There were one or two statements made, which were evidence against ono and not the othor, but that invariably happened where two. persons were tried' together, and especially where one was principal and the other accessory. His Honour ISlr Justice Cooper said he thought ho ought to accede to the application. It was a peculiar case. Tho first count in the indictment charged prisoners jointly, and that could only bo on tho assumption that they formed a common intent, and it was clear from the depositions that the male prisoner was not present when the alleged aot was said to hare been committed by the female prisoner. Tho charge really against the male was counselling and procuring the offence, and although they could be indicted jointly as principal and accessory before the fact, tho depositions showed that there was a separate and considerable branch of evidence which applied solely to one prisoner. There was a considerable branch which referred to the female prisoner only, and indirectly to tho male, and a oonsiderablo body of evidence which applicoj solely to the male and not to the female. It was impossible to lay down a general rule because one could only deal with tho special circumstances or each case. Ho had to consider whether there was likely to be any prejudice against one or the other, if they wore tried jointly on really different oflences. Hβ had to be careful that there ehould not be the slightest suggestion of unfairness in such a trial where so serious an offence was ohargodi. He therefore granted the application, and ordered tho female prisoner to bo tried first and separately. If she were acquitted he did not sco how, according to the indictment, tho charge against the male prisoner ooiild bo sustained. The c-ise against the femalo prisoner wns then taken, and she was found not guilty. Buri ford is to be tried on Saturday.