ALLEGED MURDER

Dominion, Volume 34, Issue 195, 15 May 1941, Page 11

ALLEGED MURDER

Trial Of Leonard

Neiling

DEFENCE OPENS

Alternative Theory Of Woman’s Death

The trial of Leonard Neiling, labourer and brushmaker, aged 29, for the murder of Marjory Livingston Horton on January 9, was continued in the Supreme Court, Wellington, yesterday with the last of the evidence for the prosecution and the opening of the case for accused. Counsel for accused said that evidence would be brought to show that the Crown’s theory of how Mrs. Horton met her death on the beach at Oriental Bay was not the only reasonable one and that a feasible alternative explanation could be given which would free accused from responsibility for her death.

The Chief Justice (Sir Michael Myers) is on the bench. Mr. C. H. Weston, K.C., and Mr. W. R. Birks are conducting the case for the Crown, and accused is represented by Mr. W. E. Leicester and Mr. T. P. McCarthy. Dr. J. O. Mercer, pathologist to the Wellington Hospital, who was associated with Dr. Lynch in some of the post-mortem examinations of Mrs. Horton, was the first witness yesterday. He said injuries had occurred to the brain which could only have been caused by throttling, and the degree of violence must have been great. One side of the brain was softened, which would result from the clotting of a blood vessel already damaged by disease. Shock, exposure and asphyxia would produce a general state so favourable to clotting that he could not disconnect the cerebral thrombosis, or softening, which was the immediate cause of death, from the other injuries. Cross-examined by Mr. Leicester, witness agreed that the cut over Mrs. Horton’s right eye was consistent with a fall. It would have occasioned no surprise to the doctors if a woman with arteries in the condition that Mrs. Horton’s were in, but without injuries, had been sent to the hospital with a clot. He could not point to a ease in medical literature where thrombosis had been caused by partial asphyxia _ or compression of the carotid arteries. The evidence that was found at the hospital of intercourse showed only that it had taken place up to two or four days before. Re-examined, Dr. Mercer said he agreed with Dr. Lynch that the cut over the eye could have been caused by a fall, and that the injury to the chin -was unlikely to have been caused by a fall, but if the injury to the eye, the injury to the chin and the injuries to the ears were taken together the possibility of their having been caused by a fall as opposed to applied violence had to be excluded. Mr. Leicester: Do you, taking the jaw injuries and the cut under the chin, agree that the possibility of those injuries being caused by a fall against some sharp or heavy object cannot be excluded from the case? Witness: I do not think those injuries could have been caused by a fall. Do- you say the cut under the chin could not have been caused by a fall against a sharp object?—l cannot imagine it being.caused by a fall. If the deceased stumbled and fell against a concrete parapet she could not have fractured this fragile jaw?— I do not think it is possible. Then you differ from Dir. Lynch that such a possibility must be considered? —It seems unreasonable to me that a mere stumble or fall could couse such injuries. Is it your suggestion that the injuries must only have been caused by a heavy blow of a fist and that every other causation must be excluded?—To me it is the only reasonable explanation that the injuries were only caused by a blow. Constable J. Needham, Auckland, told how he arrested accused at Auckland on January 23, on a charge of breach of probation, and took charge of his suit. Detective Commended. Detective-Sergeant W. McLennan described the police inspection of the place at Oriental Bay where Mrs. Horton was found on January 0. On January 24 lie interviewed accused at the Auckland police station, and told him that he was inquiring into the death of Mrs. Horton and wanted to know ids movements between midday on January S and midday the next day. Accused replied: ‘T am making no statement.” Witness then read to accused a statement by Harriet Rangiwhetu. Accused said: “I was on that bus all right, but I will say nothing further.” When he told accused that it was said that the Maori girl had given Mrs. Horton a match and that Neiling had sat with Mrs. Horton, conversed with her*, and come on to Wellington with her after the others alighted at Petone, he replied that he would make a statement at the proper time after he had seen a solicitor. Witness told accused that it was said that they hired a taxi, got some beer, and probably gin, at the Carlton Hotel, and went to Oriental Bay, and witness asxed him if lie had any explanation. Accused said: ’’l was not in the taxi or at the'Carlton Hotel or at Oriental Bay with this woman. I do not know her.” Accused admitted that the suit produced was worn by him on the night of January S. At the Wellington Police Station, witness continued, accused said he was in the taxi on the night of January 8 and went to the Carlton Hotel and got four bottles of beer and a. half bottle of gin. When it was pointed out that he had denied this, he strid: "I did not deny I was in the taxi or at the Carlton Hotel. What I meant to say was that 1 was making no statement HU I saw my solicitor.” Accused said be would not deny he was «rt Oriental Bay. but lie was not on the beach. He said he would be able to prove where he went after he got the beer and gin when he had seen Ins solicitor. \t the conclusion of the detective-ser-geant’s evidence his Honour commended the fair manner in which he had given his evidence ami the cure Im had taken in warning accused before accused had made statements. Chief-Del eelive 1. B. .Ymmg described an identification parade he held at the Wellington Police Stalloil on Jamiarv 27 to give witnesses an opportunity’of identifying Neiling as 1 1><‘ person they had semi with Mrs. llorloll the night before she was found injured. Mr. McCarrliy was present throughout. Case For Defence Opening the case for accused. Mr. Leicester pointed out that, for a verdict of guilty to be returned, the Crown had to prove that its theory was. the only reasonable one on which the jury could act. He hoped to show not only that: the Crown’s theory was false but. further, that there was an aliermitiv 0

one on which they should act. There were disquieting features in the evidence of identification of accused, and it would be necessary to give some attention to the evidence of Mrs. Collins, while there were discrepancies between the evidence of the bus driver and other witnesses.

If the theory that Mrs. Horton’s assailant held her down while he interfered with her were correct, one would expect to find blood on the sleeves of his coat but there was no evidence of that. The answers Neiling gave to the policemen in Auckland were not those of a man who knew he had committed murder but those of a man who knew he had broken the terms of his probation. Ear from his having “disappeared” from Wellington, be had actually reported to the probation officer on the day Mrs. Horton was found injured, and he saw about a job and went visiting people in Plimmerton. Even if it were assumed that accused was the man who was at Oriental Bay with Mrs. Horton the defence had an alternative theory of how she came by her injuries. The Crown put forward the theory of throttling to account for her death, but, if, as had been said, the blows could have rendered her unconscious, what need was there for her assailant to throttle her to carry out a sexual assault? Passing to the alternative theory that the defence would call evidence to support, Mr. Leicester suggested that while the two were on the beach she wanted to vomit and placed her false teeth on the ground and went down to the water. She was wearing high-heel shoes and even a woman steady on her feet would find difficulty in walking on the mixture of stones, rock and shells. How much more difficult would a woman unsteady on her feet find it? The defence suggested that she fell, got the cuts and broke her jaw. The blood on the parapet indicated that she fell or leaned against it and was dragged or lifted on to it. It had to be conceded that the indications were that intercourse had then taken place, but if one could one had to look at the picture through the eyes of a man who had been accosted by a complete stranger who was free and receptive, who walked with him for 40 to 50 minutes after the arrival of the bus at M eilington and went with him to an hotel to get liquor, and then suggested that they stop where it was not too light to drink it. To that type of man in that condition what happened later might have seemed a reasonable part of the evening. Though the jury might be disgusted they must not judge accused for any moral ineptitude. Mr. Leicester said expert medical evidence would be brought that would be counter to the theory that death was caused by throttling, and to show also that the facial injuries would not have caused death had Mrs. Horton not had degenerated arteries. Dr. A. E. Park explained at the request of Mr. Leicester that pathologists dealt with specimens in the laboratory and post-mortem examinations, but his own work was the treatment of the living. He thought there was a possible explanation of the cause of the injuries other than the Crown’s.

There were seven features of the case, which, taken in the aggregate, threw doubt on the Crown’s theory. The inference could be drawn that the teeth were placed where they were found. There was the absence of bruises behind the head. There was the finding of the knotted handkerchief, which suggested the possibility of its having been used to stop the flow of blood from a wound. Fourthly, there was the site of the bloodstains on the parapet and the blood ou the pebbles close to the foot of the parapet. That would suggest that the head of deceased rested in those positions for some time to allow the blood to accumulate. Fifthly, there was the absence of bloodstains on the sleeves, particularly, and on the trousers of accused’s suit. “I do not think it is likely for accused to have struck her or to have throttled her without getting blood elsewhere than in the positions described by Dr. Lynch',” said witness. Then there was the absence of abrasions on deceased’s face. The seventh feature was the manner in which an alleged throttling was done without leaving any finger marks on the victim’s throat. If the woman felt sick and placed her teeth on the parapet where they could be easily found in the dark and then, with the combination of uneven surface, high heels, the darkness and the effect of alcohol, she stumbled and fell, either once or more than once, she could have cut her chin and forehead. The subsequent swelling of her face and neck might account for the condition found later and at the post-mortem. Assuming the fall, she might have been dragged to and leaned up against the parapet, thus accounting for the blood there. Then an attempt might have been made to stanch the bleeding. Later she may have been lifted on to the parapet in an unconscious or semi-conscious condition. Appearances suggested that intercourse occurred while she was semi-conscious. The blow above the right eye was more consistent with a fall. It was not the usual place for a split to happen as the result of a blow with a fist. The cut under the chin was more consistent with a fall than a blow. Deceased had an extremely fragile jaw. The cut was two inches long. Cuts due to a blow with a fist were made by the splitting of the skin over a hard surface. In his opinion her jaw would crumple up too easily to afford a sufficiently hard surface on which the skin would split unless it were struck with something sharp. The bruising about deceased’s ears, which the Crown suggested was caused by her head being buffeted, could be explained also by blood released by the fracturing of her jaw

near its joints tracking to those regions. Deceased was a woman liable to thrombosis. Whatever the cause of the injuries, they and the shock predisposed her to thrombosis. He was not satisfied that there was throttling iu this case but, assuming that there was, he did not think that the throttling would bring on thrombosis. There -was no record in the medical literature in Wellington of constriction of the carotid arteries causing thrombosis. Neither was there a case of thrombosis due to asphyxia. Dr. Park, who is the only witness for the defence, was still iu the box when the Court adjourned till this morning.