“NO COURT WOULD CONVICT”

Dominion, Volume 21, Issue 259, 2 August 1928, Page 13

“NO COURT WOULD CONVICT”

CHARGES AGAINST MOTORIST FAIL ALLEGED INTOXICATION AND NEGLIGENCE “As I do not think that any Court would convict on the evidence. I propose to dismiss these charges,” said Mr. E. Page, S.M. in the Magistrates Court yesterday afternoon when referring to the informations of negligently driving a motor-car thereby causing bodily injury to Mary Louisa Ward, and of being in charge of a motor-car while intoxicated, which were preferred against Guiho Nervi, an Italian fisherman, aged 47, for whom Mr. A. J. Mazengarb appeared. Accused was also charged that, while in a state of intoxication, he was in charge of a motor-car, and by act or omission in relation thereto he did cause bodily injury to Mrs. . Ward. The case, which was partly heard last Wednesday, related to a woman being knocked down in Adelaide Road on May 30 last. Staggering About the Footpath. One witness stated yesterday that after the accident he saw accused, whom he could swear was “just about drunk,” staggering all over the place in Adelaide Road, while another witness said that Nervi was slightly drunk and staggering when he attempted to walk. “When I went to the scene of the accident,” said Sergeant Hodgson, “I saw the accused . staggering about the footpath nearby, showing all the usual signs of being drunk.” Mr. Mazengarb: Are you sure he was drunk or was he just staggering about as the result of th-.- shock of the accident? “I will swear he was drunk. As a matter of fact he was one of the worst cases in this respect that has been handled on this charge at the Mount Cook Police Station.” Doctor Sees Accused.

Counsel asked the sergeant if Dr. W. H. Johnston, who saw Nervi at the police station, had been of the same opinion so far as the question of drunkenness was concerned. Witness: Dr. Johnston told me that Nervi was too drunk to drive a motorcar. I asked him would he trust himself in a motor-car with accused, and he said he would not do so. I also heard the doctor tell accused that the police had to do their duty and that he had done as much as he could. Mr. Page: Have you the doctor's certificate? The Magistrate was handed the certificate of Dr. Johnston, which read: “His gait is steady; hands, steady; intellect, clear; speech, slightly slurred. In my opinion it is just possible to detect that ho has taken alcohol. He was not drunk in the ordinary sense of the word. His breath smelt scarcely of liquor.” A constable and the watch-house keeper at Mount Cook corroborated the Sergeant’s evidence, saying that Nervi was undoubtedly drunk. “Accused Quito Sober.” Three witnesses were called for the defence, one of whom stated that at 5.15 p.m. on the day in question there was no sign of drink on the accused. The other two witnesses, who saw Nervi immediately following the accident, said he was quite sober. Mr. Mazengarb: Please call Dr. Johnston. * Mr. Page: I don’t think you need bother to call the doctor, Mr. Mazengarb. You can stop your evidence here. There are three charges, one of negligent driving and the other two embodying Intoxication while in charge of a motor-car, relating to negligent driving. So far as the negligent driving is concerned, the police 'have relied on the evidence of the two young girls who saw the actual occurrence, and the position of the car. Their evidence, however, does not carry the charge of negligence to any great distance, for a witness for the defence who saw the accident says that accused tried his best to avoid it, but could not do so. The woman walked off the footpath, seemed to ’hesitate, and was then struck and knocked over. This clearly negatives the suggestion of negligence on the part of the driver.. With regard to the major charges—being in a state of intoxication—a sergeant of police and three constables for the Crown say that the accused was drunk, while three other witnesses for the prosecution say 'he was intoxicated. For the defence three witnesses have been called. Two say that after the accident Nervi was very excit-. able and unsteady, but quite sober. Looking at the whole of the evidence, it seems to me that the excitability of the accused, his general manner, and his unsteadiness, may have been caused by the knowledge that the woman whom he had knocked down had been seriously injured. As the evidence falls short—and I do not think that any Court would convict (one of the charges, negligently driving thereby causing bodily injury was indictable), I shall dismiss the charges.