DEATH SENTENCE PASSED

Press, Volume LXXIV, Issue 22319, 5 February 1938, Page 16

DEATH SENTENCE PASSED

* Murder Of Old Man At Arundel TRIAL ENDED AT TIMARU Accused Comments On Summing-Up (From Our Own Reporter.] TIMARU. February 4. Found guilty of murder. Reginald Randall David Smith was sentenced to death by his Honour Mr Justice Northcroft in the Supreme Court at Timaru to-night. For three days Smith, who is 26. faced his trial on a charge of murdering William Gaty. aged 70, a storekeeper, at his shop at Arundel. The jury took five hours and a half to determine its verdict. Smith, in a brief speech, said he was not at all afraid of a death sentence, but criticised his Honour’s summingup. which he described as unfair to the defence. Four issues, three of murder and one of manslaughter, were put to the jury by his Honour, and on the second one—that the accused had struck Gaby with intent to do bodily harm which might be likely to kill him. and was reckless of the result—the accused was found guilty. Smith, who was standing with folded arms, had two policemen with him in the dock. When asked if he had anything to say, he said: “I have nothing to cay about the sentence of death. But I have something to say about the Judge’s summing-up. I do not think it was a fair one for the defence. As for the death sentence, I am not at all afraid of that.” Smith thanked the jury for its attention and said he had not thought they would bring in the verdict they did. In his opinion, it was not correct. *T will not say more in the meantime,” he concluded. Smith smiled a little after his Honour denned the black cap and pronounced sentence of death, and was led quietly from the dock by the police

Jury Thanked

His Honour then addressed the jury as follows; “I thank you. gentlemen, for your careful and painstaking attention to a long and trying inquiry, and it may comfort you to know that 1 agree entirely with the verdict. I will direct the registrar to see that you are excused from jury service for two years. “The Police Force are to be commended for their very thorough researches in this matter. Some had more than others to do with it. but the result was the outcome of a wellorganised service and reflects credit on the Force as a whole. It has been well said that the sure* and speedy detection of crime is more deterrent than punishment. In this case, the Police Force deserves the commendation of the community for the rapidity and completeness with which it has discharged its duty.” The jury afterwards handed a note to his Honour expressing appreciation of his assistance and thanking the police and Court officials for their courtesy.

This morning during the Crown Prosecutor’s address. the accused from the dock shouted an interruption to Mr Campbell, whom he called “mad.’-’ After this a constable was placed in the dock with the accused and a wooden ornamental knob at the corner of the dock, which was loose; was placed out of the prisoner’s reach.

Dr, A. L. Haslam, with him Mr E. S. Bowie, appeared for Smith, and Mr W. D. Campbell was Crown Prosecutor.

Called at the request of the jury. Edward John Matheson, a labourer, of Arundel, who lived 200 yards from Gaby’s store and was one of the two men who found the body, said that Qaby used to call at his house each day for pig-feed. Witness said his wife called at the store at 7 p.m.. and ho knew Gaby was alive then because he heard him talking to witness’s wife. Next morning witness said he was called to the store by Charles Goodwill Johnson and saw Gaby’s body. Neitner man touched the body. Witness produced - the boots he had been wearing at the time he found the body. Charles Goodwill Johnson, a previous witness for the Crown, was recalled at the jury’s request, and he also produced the boots he had been wearing. The next witness asked tor by the jury was Constable J. B. Kearton, police photographer, who said that neither Johnson’s nor Matheson’s bcoM could hkve caused the marks on the board taken from Gaby’s hut, which had been one of the principal Crown exhibits.

The jury also wished to know if any evidence could be called to show the ownership of the gloves found in Gaby’s store, and was informed by his Honour that no evidence at all was available on the subject. Pathologist Again Called

The assistant pathologist at the Christchurch Public Hospital, Dr. E. F. Thomson, was also recalled at the request of the jury to explain the difference, in non-medical terms, between the cause and the mode of death. The examination of Dr. Thomson was conducted by His Honour himself. Dr. Thomson adduced the example of an elderly person injured in an accident and admitted to hospital. Two days later pneumonia developed and the patient died of it. In that example pneumonia was the mode of death, but the injuries were the actual cause —because if the person had not been injured the pneumonia (he referred to a special type of pneumonia to which elderly people were prone) would not have developed, Relating this to Gaby’s death, Dr. Thomson said that the cause of death was Interference with the vital centres of the brain, caused by concussion resulting from a blow on the head, but that although that was the cause he could not determine the mode of death. His opinion was that the mode of death •would be heart failure caused by this Interference with the vital centres of the brain. Dr. Thomson’s evidence concluded all the evidence called in the charge. The defence called no witnesses. Evidence Reviewed By Crown Traversing the case against Smith brought by the Crown. Mr Campbell VBid that the jury had three points to determine—that Gaby was killed and did not die in a natural way, that the accused did kill him, and that the accused's action in killing him came Under the Crimes Act’s definition of murder. > No doubt could exist that Gaby was willed, Mr Campbell claimed. "A man • not found lying in his kitchen with

his hands tied behind his back if he lias just dropped down dead from natural causes." he added. Ho clairsed further that the evidence showed that Gaby had been struck down outside the building and dragged inside. Post-mortem Examination There had been some criticism of the way Dr. Fraser had conducted the postmortem examination on Gaby's body. Mr Campbell continued, because he did not send certain organs to a hospital where a minute and microscopic examination could be made. But Dr. Fraser had said that his examination—and he had made a close one—of the heart and lungs had disclosed nothing which would account for Gaby's death. Dr. Fraser certainly had not carried out "counsels of perfection” in the examination. Mr Campbell said, but he reminded the jury that in every walk of life people did not always keep to copy-book rules. Dr. Thomson, who was a specialist in pathology, had said in his evidence that while he considered it advisable, to do certain things, he did not think it essential. In any case the evidence of both doctors gave the cause of death as the injuries Gaby had received. Coming to the second point—who had killed Gaby—Mr Campbell reminded the jury that the defence admitted that the laces with which Gaby was tied and a lucky charm found beside the Dody belonged to Smith. Then there was the police evidence of the nailmarks from Smith’s boots fitting the board taken from Gaby's hut. Then, too. human blood found on Smith s clothes was found to belong to Gab.v s blood group—which while not proving that the blood was Gaby’s, showed that it might have been. Again, Smith had left numerous copper coins in the boardinghouse in which he stayed—and Gaby’s hut had had in it even after the death, many copper coins in various places. Furthermore. Smith had cashed a cheque from a book which belonged to Gabr. Accused Interrupts Mr Campbell then dealt at considerable length with the Crimes Act definition of murder. He was reconstructing a theory of the crime when suddenly accused interrupted him from the dock, swearing at him and declaring he was mad. Mr Campbell said that it was murder if a man intended to kill his victim—and a verdict of murder could also be brought in if lie hit another so as to cause him bodily harm and was reckless of the result. He claimed that on accused's own statement his action could be construed as deliberate and calculated. Accused had met Gaby outside the door, pushed him away, and then gone back inside again, picked up a piece of firewood, gone out again and hit him. Then he had dragged him inside and tied his hands behind his back—and then left him. Smith was a young and active man. Why could he not have escaped, for there were many ways in which he could have escaped, or why. if he must strike Gaby, why did he not use his fist? Smith had not cared what had happened to Gaby, Mr Campbell said, tracing his movements after Gaby’s death, none of which showed any consideration for Gaby, left senseless in the store. Interview by Police

Mr Campbell said that when accused had been interviewed by the police, his first thought had not been for Gaby, but for himself —to discover how much the police knew. Then he had had several days lo work out what he would say. Daw-abiding citizens throughout the country had to be protected from a section of the community who would rob their houses and not hesitate to strike down the householder if he interrupted them. That protection rested on the knowledge criminals must have that they would have to answer tor their misdeeds. And what was easier than for such persons to say: ”1 didn’t mean to kill”? Case for the Defence

Dr. Haslam, for the defence, said that the Crown had failed to make its case of murder. The defence also admitted that the prisoner could not go unpunished. But there was a middle way, a compromise, to the jury—a verdict of manslaughter. Admittedly Smith was at Gaby's store on the night of September 10; admittedly he struck at Gaby; and admittedly Gaby was found dead next morning. But there was no evidence that Smith went to the store with any intention of killing, or even hunting in any way, its owner. Traversing accused’s own statement, which, he said, was open and frank, Dr. Haslam said it was clear that accused intended to go into the store, get what he could, and get away as quickly as he could. Then as he was getting away he was discovered by someone. Was it any wonder that in these circumstances accused, as his statement said, lost his head? “No Intention to Kill’’

He submitted that the evidence showed no coldly deliberate act. no intention to kill, nor to injure anyone so seriously as to be likely to cause his death. Smith had been surprised at the arrival of someone, and in the heat of the moment grabbed a piece of wood and struck at him. Dr. Haslam claimed that Smith's action in tying Gaby’s hands and feet was proof that Smith had neither intended to kill Gaby nor thought he had injured him so seriously that he might die. Surely he had done that so that Gaby could not pursue him nor give the alarm. If Smith had really been brutal could he not have dragged the body to the Kangitata river and thrown it in there?

“Could any man have made it easier for the police to collect him?” asked Dr. Haslam, in maintaining that Smith's actions after Gaby’s death were not those of a murderer. He traversed all Smith’s movements after the tragedy, and said that he could easily have got away in the back country or somewhere in hiding if he thought he was wanted for murder. Smith’s actions were hardly the slinking in the shadows of a murderer, nor again a murderer trying to brazen it out after hr had obliterated all traces. "One Verdict Possible" Taking the evidence p : eoc by piece or as a whole, Dr. Haslam said, the one verdict that was possible was manslaughter. The medical evidence was traversed by Dr. Haslam. who asked the jury if they could be satisfied beyond all reasonable doubt that the injury to the head had been the cause of death. In Dr. Fraser’s postmortem examination at Timaru the doctor had not weighed the heart nor made a microscopic examination of the heart and lungs—and they had been destroyed. Dr. Thomson’s evidence had been that, because of the condition of Gaby’s kidneys, his heart could not have been normal. In a case of this gravity it was most unfortunate that the post-mortem examination was conducted the way it was. What chance did the defence have of checking the medical evidence brought by the prosecution? It was most unfortunate that the heart and lungs were destroyed before even the accused man was arrested. In a criminal charge, such evidence of the proof of Gaby’s death was unsatisfactory. Dr. Haslam added that in his remarks he intended no reflection on Dr. Fraser. Facilities for post-mortem examinations were perhaps not of the best.

Dr. Haslam referred also to Dr. Mail’s evidence of the external appearance of Gaby’s neck and head suggesting suflocaticn. and added that Dr. Thomson had said that he could not say Gaby had not died from suffocation. If that had happened, could it. then be said that Smith had intended Gaby’s death? Dr.. Haslam concluded by again claiming that the fairest verdict on the evidence was one of manslaughter. Ills Honour's Address

His Honour, in defining the Crimes Act, set out the three sets of circumstances which, applicable in the present case, could justify a verdict of murder. The first such circumstances would arise if there was an intent to kill, the second if there was an intent to inflict a bodily injury which might be likely to cause death, accused being-reckless of whether death

was so caused cr not, and the third circumstance would be if the accused was resisting lawful apprehension. Amplifying the third definition of murder —resistance to lawful apprehension —his Honour said that in certain classes of offences private citizens had a right, indeed a duty, to make arrests.

His Honour made special reference to unc remark which he said had been made by Dr. Haslam in his excellent address. “There should be no such thing as compromise in the decision of a jury," his Honour added. Jurymen should bo clear and impartial, deciding in complete mental honesty one way or the other. His Honour traversed the evidence and made a particular comment on the criticism that had been made of part of the medical testimony. The medical evidence of the cause of death was quite clear, his Honour said. Criticism had been made of Dr. Fraser, because it was suggested his examination left a doubt whether Gaby died from a blow on the head, as both doctors had said, or died from suffocation caused from lying in the way in which tic had been placed. It was suggested that because a microscopic examination had not been made of the heart and lungs the doctor had been at fault and that fact had been embarrassing to this trial.

Adequacy of Medical Evidence

That criticism, his Honour continued, would be valuable if it was supported by the medical testimony. But both doctors said positively that Gaby’s death was due to the blow ho received on the head. Dr. Fraser had made not a mere perfunctory but a careful examination of the heart and lungs, and had come to the conclusion that nothing at all about them indicated death was due to any particular functional disorder of those organs. That counsels of perfection were followed did not vitiate the medical evidence. There was no evidence of any sort that the absence of microscopic sections of the heart and lungs had prejudiced the trial in any way. His Honour paid particular attention to the statement made by the accused. mentioning apparent discrepancies in time the accused said he arrived at Arundel and the time the drover said he saw him there in the afternoon, and again in the time the accused said he was given a ride in a passing car and the time the driver of the car said he picked him up. The view might be taken that both discrepancies might have been caused by agitation or might have been to mislead the police. His Honour said that a sinister inference which might be drawn, but which he would not press, was that, as the prisoner knew Gaby had seen him in the afternoon, the prisoner had good reason to get rid of him. The discrepancy in the time of his arrival at Arundel might be determined by the jury as an attempt by the accused to conceal that he had been there earlier in the day and waited possibly with intent to rob the store. His Honour traversed the evidence in full, mentioning Smith’s apparent poverty before Gaby’s death and that he was spending money freely after it. He also said it was obvious from the evidence that an attempt had been made to rob Gaby’s store and that Smith was the man involved. The issues which his Honour put to the jury were:— G) Is the prisoner guilty of the murder of William Gaby, in that he meant to cause the death of Gaby? (2) Is the prisoner guilty of the murder of Gaby, in that he meant to cause bodily injury, which was known to the prisoner to be likely to cause death and was reckless whether death ensued or not? (3) Is the prisoner guilty of the murder of Gaby in that he meant to inflict grievous bodily injury for the purpose of facilitating resistance to lawful apprehension? 14) Is the prisoner guilty of the manslaughter of Gaby? Definition Wanted The jury, after 90 minutes of retirement, returned to ask for a definition of the words “lawful apprehension,” contained in * the third of the four issues before them. His Honour replied quoting authorities, and saying that in certain cases, of which breaking and entering a dwelling was one. private citizens had the same right as the police had to arrest without' a warrant. If Smith caused Gaby’s fleath when he believed Gaby was going to arrest him. it would be murder. After a long, private consultation in the jury box, the jury asked a further question in writing as to whether it would be necessary for Gaby to do other than hold the accused or would it be necessary for Gaby to make a declaration of his intention to apprehend.

His Honour quoted an authority which, he said was laid down in an old judgment, but was still good in law. that it need not be assumed that Gaby slated any such intention. It was the jury’s task to determine whether the circumstances were such that Smith knew Gaby was going to apprehend him. The jury then retired again.