SUPREME COURT.
Saturday, March Ist, 1851. The Criminal Sessions were opened t morning before his Honor the Chief 3m at the usual hour. •. The Grand Jury having been sworn w» and selected as their -foreman &* eXS f heli Kennedy, Esq., his Honor delivered to w the following charge : Mr. Foreman, and gentlemen of Artrtai J«J| Amongst the cam in the Calendar there "* 7T,bi pily, tiro in which the acti, in reipect of «■» priionera hare been committed for trial, n* "^ followed bj the lon of human life. ?bej K ° |P which will deaerte your beat conaideration. » X 4 tioutar, it will be neeefiaty for you «• *J ™ dlT ithe distinction betwef n the two great Be« «• |ttJ sioni under which ourXaw clmim all cr "?,j r# Tin of homicide— viz., murder and naanrtaim *.^ I diatinctionii.indeed •uniciently definite-- , doubt not, In the main, preient to your n»"»
<r^T^ftenhappen that, owing to the vari- ** complication of the circumitances of the ' ° f ri«n ereat care and patience may be needed 'Srto "pp'y the diitinction ri s htlT * * feel if the mote bound to notice thii point on thii • T became I think that any perion who has |T the coune of the adminiitration of the CrimfirLof late yean at home, and, in some degree, •Colony also, will hare noticed the working of Son to narrow in practice the boundaries Sfirit of theie classes, and in the tame degree JJod tboie of the second clan. Now, every !T n o f thii kind must create tome indistinctness fictlwi confasion in the administration of the hot that will not necessarily be * matter of imMceand concern to the whole community. iker it sh*H w *«* be * m*«er of such contill depend on the nature of the distinction ZL the two classes of crimes. If the classifica* an arbitrary one, the evil of disrejj,it will amount merely to the introduction of rtA practical inconvenience— but if the leparaWwien the two classea be founded in truth and t moral constitution of things, then^ill this niinn become an evil of a more seriousVind. ndir the head of " Murder" are classed all 111 tcti by which human life is destroyed withtn\ fortification or excuse. The malice of the jLf may be in some cases more concentrated Jime individual, or it may manifest itself in a r|ttneral and indiscriminate disregard of human But the essence of the crime lies always in ', that there is in the offender a malicious or heart (in which sense our boobs explain the i (malice' used in the indictments for this crime), •taint disposition of mind which makes the oto reckleii and regardleu of the life and perofhii fellow man. This malignancy or wanton gird of the sanctity of human life, is of the esaof Murder. And it is for upholding in men a aof this sanctity, for the sake of deterring men i following the prompting of this malignant spiind illuming a dominion OTer their brothers' i,tb|tthe Criminal law of Homicide is ordained. (thii disposition manifests itself, a man will be irdenr even though he has received some pro. iiion. Thru, if a man after receiving some slight rocttion or offence, retaliates upon the person ibai offended him in a cruel and ourageous man- , altogether out of proportion to ths offence? and be indulgence of his revenge destroys the life of tiotim— this has always been regarded as mur- — u being an outbreak of that malignant and [leiivindictiveness, which it 'it the first object uminliwto redress. In the other hand, cases which fall under the sed heid in marked, and are in some degree exid or extenuated, by the absence of settled malig—tht crime being regarded as in great measure to homan error and infirmity. Indeed there are if cam of manslaughter in which the killing is ■1— the criminal does at the moment intend to , bat the intention is not a deliberate one : it ia the outgrowth of a settled and vindictive maligof the heart, but the result of tome impulte of ion overbearing for the moment the man's power slf-controul. The manslaver acts on no settled «k, bat on the sting and heat of some grave rtcent provocation, which suspends the power tlkontrol. Accordingly, how great soever the nation may be, if there has been time and optanity for cooling, the man will not, after that, Honed to assume the authority which belongs Ml Society in the whole, and to pass judgment himielf upon the offence which he deems himself we received, and to avenge *himteif by taking Mlow'i life. And if he do so, his act will be der, being attributable to malice and revenge, not to human frailty. liaaimple practical test, the nature of mankilter ia well shown by the old technical rule of Iliw, thit there cannot be any acceisaries before fact in manslaughter, as there m»y be-in mur- ■ inaamnch as the killing is in cases of manliter, conceived of at being altogether sudden without premeditation. «Mi the distinction between these two classes inu. '« true it is, that under the first of these clasies pxnpriied crimes, attended with a great variety 'ftmitinces, springing from motives most di> Mndeven differing in their moral character ifth a great variety of degrees. Yet these crimes jtt murder: all cases of homicide wholly withal*} jollification or extenuation— all marked by of which I have spoken. Probably "• P«rt, to the great diversity of the forms of ''thai grouped together, and made subject to WQof punishment, namely, death, and, in part ' ll > an objection which some persons entertain 1 puniihment of death in any cases, that we are W &r the cause of that tendency of men's *•• of which l have spoken as apparent in many in recent times. The crimes so P 6 * together, are indeed all great crimes, but "* not felt to be equally great. Ferhapa also, *Jmtc happened to some men, that the extra""f atrocity of the outward acts and circumMl Winding tome murdera of late years, has 'i'" the thoughts «n some degree from the inJ™ m »Vty which belongs to murder in every "* ll0 »eter thit may be—and whatever be the "Weneis, or want of proportion in our present "'POniihmenti— and whatever also may be the J '<» neb, defects as may exist— yaj surely ""tt&is clear, that the remedy is not to be dM °? nfuiin g these two classes of homicide, KwiDg « criminal act to be extenuated by or »fror or infirmity in cases where in truth, NitK enuttion exists. For to say this, is to Republic morality by laying down an untthi lto tte dut y "^ accountableness of Beingt, For every decision on a ajuestion of ™ a «necti our public morality ;— in part it 7" | Hut morality, in part it even creates it. j^S these remarks, I am not speaking by Wlirt <Ure or complaint of any proceeding ; but fj*»ce and meaning of all that I say, is discharge the duty which is laid upon me J/r.toe all persons concerned in pronouncing Twon upon « question of this kind, of the £p°«ance of ; all such deciaions-^and of the tr ft m l«» of social morality for our com14 Kilt' * Uch muit thcie decisions in effect be) down with the utmost possible thought a^rand Jury then retired and the folJ cases were laid before thefe, on each they returned true bills, v?z. :— "* r jf oorG; j ohn M c o regor (2),
Ann Lamb and Mary Martin, and against Francis Butcher. The Grand Jury then made a presentment to the Chief Justice, complaining of that intolerable and unhealthy nuisance, the Queen-street Drain, — an accumulation of filthy impurities sufficient to cause an epidemic and to decimate the population. Nosing, as we unfortunately do, its incessant distillations, we sincerely trust some small effort may be made in sanitary rescue of the inhabitants exposed to its pestilential agencies. His Honor, in receiving the presentment, stated that he had no power with the Executive G-overnment, but that he did not doubt that any representation from so highly respectable a body as the Grand Jury, would meet with the greatest possible attention. We trust it may. — As circumstances have rendered it incumbent upon the Grand Jury to re-assemble this day, we trust they will not shrink from following up the good work which they on Saturday commenced. Grievous as the nuisance of the Queen-street drain, there are many others equally well known, and probably fully more perilous. "We need but instance the many open wells with which Auckland abounds, — and having done so-, we hope the present Grand Jury will not separate without a strenuous effort to obtain some security from being swallowed by these yawning gulphs. Once discharged, their power and functions cease. Their names may, or may not appear at a future session, or their number may be augmented at pleasure, and that without even being previously included in i the Common Jury List. It would, in our opinion, be well if a Grand Jury List were published, and that upon some known principle and authority. It would we know, be a satisfaction to the public mind, and it would exonerate those upon whom the office of election rests, from all unworthy suspicion of favour, or irregularity in the selection. It is not satisfactory to know that even one name can be added without authority — if one can be so added, so may two or more. But it is unnecessary to pursue the theme farther. The Attorney-General intimated to the Court that there was yet another bill to prefer (against Heki — Sandwich Islander — for murder, at the Bay of Islands), and that the attendance of the witnesses in the case had not yet been procured, and requested, as it was probable the other business of the Court would not be concluded before Tuesday next, that the Grand Jury should not be discharged i till that day. They were accordingly discharged from further attendance on this day and Monday, but were directed to attend the Court again on Tuesday next, at 10 o'clock. Peter Moore (a man of color) was placed ' at the bar, and indicted for stealing certain wearing apparel, the property of Martin Jordan. The facts of this case, as adduced in the evidence, are shortly as follows : — The prosecutor was engaged as waiter at the last Auckland Races, in a booth on the course occupied by Mr. Fielding, confectioner, and employed the prisoner to assist him in his duties ; — at the termination of the races, having discharged the prisoner, he proceeded to a part of the booth in which he had left the clothes in question, and where he had seen them but a short time before, and found they •were no longer there. Suspicion fell on the prisoner, and on the same evening the articles were found in his possession in a public ! house in town. The prisoner put in a written statement in which he avowed that the articles had been given to him by the prosecutor in part payment of his hire. The Jury, however, after a few seconds' deliberation, returned a verdict of — Guilty. Ann Lamb and Mary Martin were then placed in the dock, charged with stealing certain goods and wearing apparel, the property of Elizabeth, an aboriginal native woman. Mr. George defended the prisoner Martin. It appeared in the evidence in this case that the prosecutrix, who rented a house in a lane near Shortland-streeyhad on the 12th of January gone out from her home, leaving the door locked. After an absence over two nights she returned and found the door open, and every article of furniture, bedding, &c, gone. She afterwards saw the whole of the things in the house of the prisoner Lamb, which is next door to her own. On the constables proceeding there to search, they found both the prisoners there in the possession of the things, which Martin claimed as her own. Mr. George made an able address to the Jury in defence of Martin, but after a few minutes' deliberation, they returned a verdict of Guilty against both the prisoners. John McGregor was indicted for stealing two coats and one pair of trowsers, the property of Isaiah Crowther. The property had been stolen from the counter in the shop of the prosecutor, on the sth of October last, and was found by the police, in consequence
of information received by them, in the possession of the prisoner, at his lodgings. The prisoner cross-examined the witnesses against him with all the cunning of an (ap- \ parently) practised hand, and set up the defence that he had purchased the clothes of a matf whom he believed to have gone to Sydney. He did not, however, succeed in inducing the Jury to believe this story — for they, after a very short deliberation, returned a verdict of Guilty. The same prisoner was then indicted for stealing a watch, the property of William Bacon. — It appeared that whilst the constables were removing the prisoner to the lock-up, on taking him into custody on the preceding charge, he was observed to have around his neck a guard, and, apparently, in his waiscoat pocket a watch j he was noticed to attempt to conceal the guard, and on reaching the guard-room he requested to be allowed to go to the closet in the rear. On removal to the lock-up he was searched, and no guard or watch being found upon him, suspicion was excited, and the closet searched, when the watch was found under the seat. This watch the prosecutor identified as his property, and as having been stolen from him some time previous. — Verdict, Guilty. The Court was then adjourned to Monday.
Monday, February 3rd. Francis Butcher, a corporal in the 58th regiment, was placed at the bar, and indicted for the wilful murder of Francis MacKeown, a private in the same ment, on the 9th of December, 1850. Mr. Whitaker defended the prisoner. The facts, as adduced in the evidence at Court this day, were, in all material' respects, the same as were placed before our readers on the 13th of December last, in the report of *he inquiry before the Coroner. Press of other matter preventing the publication in our present issue of a full report of the trial of this day, we prefer rather to refer to the as there reported, thanto give an imperfect abstract. The evidence of Captains Nugent and Parratt, Adjutant Cooper, and Sergeant Simms (all of the 58th regiment) bore the strongest testimony as to the good character of the prisoner, and that of Mr. Mclllwain, gaoler, who spoke as to the prisoner having been in such a state of despondency since his committal to the gaol as to necessitate his being strictly watched, having been added to that given before the coroner, and The Attorney-General having addressed the Jury for the prosecution, — Mr. Whitaker addressed them in behalf of the prisoner, dwelling at length upon the excellent character he had received, and the peculiar state of delirium, or insanity, to which it had been shown in evidence he had been reduced by drink, and urgently 4 appealing to the Jury, if they had any doubt in their own minds as' to his having been, at the time of the commission of the fatal act, in such a state as to have been conscious of his act, to give the unfortunate man before them the benefit of that doubt. His Honor then summed up the evidence — the Jury retired, and after an absence of about three-quarters of an hour, returned with a verdict of ' • Manslaughter. "
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Bibliographic details
Daily Southern Cross, Volume V, Issue 384, 4 March 1851, Page 2
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2,592SUPREME COURT. Daily Southern Cross, Volume V, Issue 384, 4 March 1851, Page 2
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