USE OF REVOLVER

Evening Post, Volume CXXIX, Issue 34, 9 February 1940, Page 8

USE OF REVOLVER

LEGAL POINT RAISED

OVERRULED BY JUDGE

COURT SENTENCES

s A legal point raised by counsel for . Charles Theodor Nelson, a seaman, . aged 51, who was found not guilty by 3 a jury of attempted murder and discharging a revolver with intent to do grievous bodily harm to Stanley Meredith Hunt, a slaughterman, on T November 25, but guilty of causing actual bodily harm in circumstances 5 that, had death occurred, would have made him guilty of manslaughter, was i overruled in the Supreme Court today by Mr. Justice Ostler, who sentenced Nelson to three months' hard labour. Nelson was charged on the first two counts, but the third count was added to the indictment. When the prisoner was called for sentence today, his counsel, Mr. R. Hardie Boys, asked his Honour t> state a case for the Court of Appeal under section 442 of the Crimes Act as to whether it was competent to amend an indictment after the jury had acquitted the accused on the only two charges on. which he was placed on trial. The , jury gave its verdict on the two I charges before it, and it was submitted that at that stage the trial had , concluded; but the jury was then asked to give a verdict on another charge that had been added to the I indictment by way of amendment. I The accused had not previously been charged on the third count and had not been asked to plead. He might have wanted to call medical evidence to show that the powder charge received in the face by Hunt was not actual bodily harm, but merely discomfort. Mr. W. H. Cunningham, the Crown Prosecutor, said the accused's attention had been drawn to that particular aspect of the case, which arose out of his own evidence on the firing of the revolver. He submitted that the accused had not been prejudiced, because the third charge came from his own version of the incident. CONFORMITY WITH PROOF. His Honour said that what he had done in allowing an amendment to the indictment had been done only to com* plete the record. An indictment could be amended ir> conformity with the proof as long as it did not prejudice the accused, anc. in his opinion the amendment had been actually made during the trial. Counsel attended in his Honour's room and he informed them of what he intended to do, showing them the particular question he proposed to put to the jury. There was no objection at the time, and counsel knew what his client had to meet. When the jury was considering the first two counts it was also considering the other question that had been put to it. He would not state a case for the Court of Appeal: the prisoner, if he so desired, would have to go straight to the Court of Appeal. ~ Mr. Boys, speaking in mitigation of penalty, said the prisoner was a hard: working, industrious man, and it was only since he came ashore and had trouble with his eyes—he was slowly going blind—that he had been either idle or prone to drink. He had ao history of crime and violence, and on the present charges he had been almost three months in custody. His Honour, addressing the prisoner, said he was a most fortunate man. The jury had acquitted him of the intent either to kill or to do harm, but that did not necessarily mean that it disbelieved Hunt's evidenced "The way I look on your offence is this: if a man gets drunk or intoxicated and takes a dangerous thing like a motorcar and endangers life thereby, the Courts have recognised that that man must be punished in the public interest," said his Honour. "It seems to me no different in taking a motor-car than in taking a loaded revolver, being so careless that you don't know it is loaded, and just miss killing a man." His Honour said he had intended to pass a sentence of six months' imprisonment, but he would make allowance for the time already spent in custody. REFORMATIVE DETENTION. Addressing Richard Sullivan, a labourer, aged 36 (Mr. C. H. Arndt), who had been found guilty of stealing £22 in notes from a man in a city hotel on New Year's Day, his Honour said that had the prisoner been a young man and appearing for his first, or even second, offence, he would have been quite glad to deal leniently with him; but from 1922 onwards he had a long list, containing the best part of twenty convictions. True, almost all of the offences had been petty, but there were several convictions for theft. Three years ago he had received two years' hard labour for robbery with violence, a more serious charge. Leniency was therefore out of the question. The prisoner was sentenced to three years' reformative detention. "You have been making a perfect nuisance of yourself," said his Honour to Thomas James Voce, a soldier and chef, aged 38, who had pleaded guilty in the Magistrate's Court on January 31 to breaking and entering and theft. "You are wearing a soldier's uniform, but they don't want you—you are more nuisance than you are worth. It seems to me the best thing I can do in your own interest is to send you to gaol and get the drink out of your system." His Honour added that he did not like to send a first offender to prison. He would be admitted to probation for two years, on condition that he pay the costs, £1 Is, make restitution of £3 18s 6d, and take out a prohibition order. Ernest Alfred Roberts, a labourer, aged 21, who had pleaded guilty at Masterton on January 23 to indecently assaulting a feniale and indecently assaulting- a male, was sentenced to Borstal detention not exceeding two years.

Leonard Francis Gillespie, a labourer, aged 21 (Mr. J. Meltzer), was admitted to probation for two years for breaking and entering and theft, was ordered to make restitution of 19s and pay costs, £1 Is, and ordered to take out a prohibition order. He pleaded guilty at Nelson on January 19.