THE COURTS-TO-DAY.

Evening Star, Issue 8769, 9 March 1892, Page 2

THE COURTS-TO-DAY.

BUPREME COURT-CRIMINAL SITTINGS. (Before Sis Honor Mr Justice Williams,) fI&KKP-STEAtUJO. The trial of Thomas ffeaky was resumed, The case fox the Crown dosed last evening, the laid witness being Robert Little. This morning' The Foreman said that the jury wished to ask whether the brands on the lambs seen in Healey'a paddock were larger than the brands on the sheep. The Grown Prosecutor (Mr Haggltt) replied that there was no evidenoe of that, but one witness, Soaife, had said that they looked larger. His Honor direoted that Soaife should be asked. Witness Soaife was recalled.

The Crown Proseoutor,: The jury wish to know, Mr Soaife, whether the brand H4 on the lambs was larger than the brand on Healey'a sheep. Witness: That I could not say, but in my opinion it was larger than the brand on the paper. Mr Chapman: I should like to ask witness a question. (To witness): A witness spoke of identifying a ewe lying in the creek by the wool on its udder. Could you identify a ewe by the wool on its ndder ? Witness: I should not like to do so unless it was of some particular oolor. The Crown Proseoutor: If you had bad the sheep in your hands before and had specially noticed the fact Witness: If there was any special mark abont it I should know it again certainly. The Crown Proseoutor: A witness has said that he had the sheep in his hands before and noticed wool on the ndder, and that there is no wool on the udder of other sheep. Witness: If he notioed that, of course it would be something to go by. Mr Chapman: But would you rely on such a thing ? Do sheep have wool on their ndders ?

Witness: Sometimes. Mr Chapman: Would you rely on suoh a thing? Witness: If there was anything speoial about the wool,

Mr Chapman: But when nothing of the sort ia stated would you rely on it ? Witness: If a man noticed something very partioular about it Mr Chapman: But I speak of the mere fact of wool being on the udder ? Witness: I should hesitate unless there was something very special about it. If there was I should be perfectly certain. His Honor: You say that the brand H4 on the lambß in Healey's yard seemed larger than the brand on the paper. Witness: On the blue paper—the application for registration. Mr flosking observed that the mark on the paper was traced from the aotual brand. The Crown Prosecutor then rose to review the evidence.

His Honor: Surely, Mr Haggitt, it is not ÜBual to do that. You have the right, but it is not usually exercised excepting when the evidence given does not correspond with the opening. The Crown Prosecutor submitted that be had a general right, and that he had never been stoppod before. Mr Chapman remembered that on one oocasion, when he rose to reply, the judge made an observation about it. His Honor understood this to be the rule: that the right was never exercised unless in exceptional cases where erroneous statements had keen made which cagfet to be •corrected.

The Crown Prosecutor urged that the statute gave him the right, and he certainly would not wish to exerciße it—he was not so fond of hearing his own voice—if he did not conceive it to be his duty to His Honor and to the jury. His Honor: Ido not stop you. The Crown Prosecutor: But as the question is raised, perhaps your Honor will decide whether I have not the right as representing the Crown to address the jury after my friend. His Honor : I am quite willing to deoide that and say that you have not. Tho Crown Prosecutor: Well, I submit that according to the rules I have, your Honor.

His Honor: The Attorney-General has,

The Grown Prosecutor: He has a special right, but not as Attorney-General, but only as representing the Crown, Tbe question has been raised several times, and the Chief Justice has said that he thought any counsel representing the Crown had tbe same right ap the Attorney-General. His Honor: I alwaya understood that right to be confined to the Attorney-General. Mr Chapman remarked that the position of the Attorney-General in the colony was precisely the same as in England. Sir Bryan O'Loghlen was unseated in the House of Commons because he was Attorney* General in Victoria—Her Majesty's Attorney there, His Honor: It seems to be reasonable that where the Crown is directly conoerned, as in a post office prosecution for the larceny of letters, that you should have the right of reply, because you would be specially representing the interests of the Crown—not generally, as every Crown Prosecutor does. The Crown Prosecutor remarked that he wished he had known beforehand that he would not be allowed to speak, He had specially prepared himself last night. His Honor said that he did not prevent Mr Haggitt from speaking, but for the reason Btated he hoped he would be concise. The Crown Prosecutor replied that if he did speak he should bo more than conoise, His Honor: Well, unless there is some special reason it does not seem to me to be your duty. There may, of course, be some speoial reason. The Crown Proßecutor : As I have said, your Honor, I do not wish to speak for the sake of hearing my own voice. I should only do so as a question of duty; and as you say it is not my duty, I shall sit down. His Honor: Ido not say you should not sum fully if there is a special reason for doing so. If there is, it is certainly your duty to sum up, However, if yon do not care about summing ud, there is an end to it.

The Grown Prosecutor: If I were to sum up after what your Honor has said, it would certainly appear to the outside public, and perhaps to the jury, that I was pressing unduly upon the prisoner, and I do not want to do that.

His Honor: Very well. Mr Chapman then rose to address the jury, and spoke for an hour and twenty minutes. He proposed to show wherein the evidence for the Crown was wholly insufficient to prove the case. His friend seemed to feel that this morning when he proposed to adopt the unusual course of following up his evidence with an address

The Crown Prosecutor: Surely that is not a matter for comment.

Mr Chapman: And was ruled out by His Honor. He must have felt the stress laid upon him, and that the case was not the ewy, glib matter that Mr Hosking had opened, He (Mr Chapman) said that unless the case itself convinced the jury without speeches from the prosecution, there must be a doubtjwd it was the duty of the jury to give prisoner the benefit of any doubt. The Crown had set themselves to prove that on the 26th December last prisoner stole there sheep from the Messrs M'Master, and they had conducted the case in a remarkable manner. What took place this morning was one sample, and Mr Hosking's interruption of the crossexamination of a witness yesterday was another, He (Mr Chapman) was not often engaged in a criminal case, but it was the first time he had been arrayed against a gentleman imported into the case in the private interests, it must be supposed, of the prosecutor. A straggle was being made to oonvict Healey, not so much in the interests of the country, but iu the interests of a private person. Well, the Crown had to prove that these sheep were stolen by Healey on the date mentioned. It was not necessary to prove the exaot number, but the particular sheep must be proved. What was the evldenoe on which the case was based? Really all that was known was what Reid bad stated as to seeing Healey driving a mob of sheep and ploking up one that had been knocked down by the dog. Reid did not handle the sheep; the whole transaction recorded between him and Healey took place inside of two minutes; and were was nothing in his evidence to lead any reasoning man to suppose that

Healey would have gone off the road at all with the sheep bat to rescue the one that had.been knocked down. That waa the first evidence. It gave the jury absolutely nothing whereby to determine the ease, unless subsequent circumstances aided it. And it involved the Crown starting on the extraordinary assumption that Healey proceeded to take away these sheep and steal them knowing that he bad been already detected.- That was sufficiently monstrous in itself. And then the jury must assume that all the guilty and susEioious aots done by this man seemed to ave been done in the presenoe of persons who were really deteotives. The next step in the case was this: it had been said by Little that he found the cheep in the paddock had been knooked about. There was absolutely no evidenoe to show it was Healey who had knocked them about. There was, however, evidenoe that they had been knocked about, in that both Reid and Little saw some time in the day that they were huddled up in a oorner. But Reid said that he counted the sheep the same day, five hours after Healey bad been seen in the vicinity; and what he found was not that there were twenty-two sheep missing, but that there were thirty-three missing. The defence oould not be called upon to aooonnt for that. But it showed that, whoever it was who was interfering with Little's sheep, the number did not tally with the number alleged to have been taken with Healey. He (sir Chapman) put it thatthe subsequent oiroumstanoes oould not be invoked as evidence of stealing M'Masters' sheep unless the jury considered It conclusively proved that sheep to the number alleged were taken away by prisoner on that morning from M'Masters* paddock; and seoondly, that those identical sheep were found with false ear-marks upon them in Healey's paddook some days afterwards; and thirdly, that the sheep found in the river were those identical sheep. All these subsequent circumstances, in so far as they touohed Healey, were valueless, unless the jury swallowed the first dose that he stole the sheep in the presence of Reid. What had the jury to assume in order that the case for the Crown should be made out? First, that the man actually stole the sheep in the presenoe of Reid, and having apparently no prickings of conscience arising from the circumstances that he had been detected by Reid, that he aoted throughout simply as a lunatic What, if guilty, would have been easier than to have cleared out and abstained from doing anything more after Reid detected him ? Did it not seem absurd to suppose that after cropping these sheep and putting them in the river, after mutilating them to make them look like his own, that he should have mutilated exactly the same number of sheep as were taken from the M'Masters. Would not a guilty man have blinded pursuit by mutilating some of his own sheep as well? Surely the jury must credit a thief with a grain of sense, and in this case only a grain was wanted to bailie deteotion by altering some, if not all, of his own sheep. Again, what oould be more obvious than that a man twioe detected—first by Reid and then by the ear-marks—-would have seen it his interest to bundle the sheep away on tho mountain even at the risk of losing them? A couple of hours would have sufficed to do that. In this he had the means of escape at hand—nothing could be simpler. It had been suggested that he had good reason for putting off Soaife from inspecting his sheep; but the answer that could be made explained not only that matter, but also the possession of the hose with which it was suggested he sluiced down the cart. What would have been simpler than for him to have gone home from Naseby that night and tail the sheep and turn them out? That would have been the aotion of a thief. The truth was, as the police knew, that he had a piece of land at Naseby that he was going to work, and that he was taking tho hoße there for sluicing purposes. It was said that the defence were called upon to explain away numerous circumstances in Healey's subsequent actions. All that he (Mr Chapman) could say about the alleged cropping of ears and cutting out patches of skin, and tying up the sheep, and I putting them into the river, was that tbey were not the actions a guilty Healey would have done. A guilty man would not have done those things; an innocent man could not be expected to explain them. If he were guilty it would be idle to explain; if innocent it would be perfectly impossible to explain them. He (Mr Chapman) was entirely relieved of that explanation by assuming Healey's innooence, and he was entitled to do so until the oontrary was proved. He would, however, address himself to one or two of the circumstances referred to. If this man had been guilty there would have been evidence against him tbatr he could not have got rid of. The wool of those aheep would have been found with .M'Masters* brand upon it. The constables saw that. They searched his two bales of wool, and found not what they were after. And why? Because Healey had not stolen either the sheep or the wool. That was, and ought to be made, the turning point of the case, though it was not the only one. The oonstables did not forget to pick up the trifling circumstance that the twine with which the sheep were bound was of the same length as some found at Healey's, but it did not suit them to see whether the dray had been taken up to the coalpit, as Healey said it had. They, picked up the trifling circumstance that there were bits of wool on the dray—caused, it might be supposed, by the man dumping his bales in the dray but they did not find out other things quite as easy if Healey did the deed charged. They did not fiod in or near his premises this immense number of large pieoes of skin cut off the sheep, nor did they discover traces of tho blood on the man or on his clothes. No doubt the polioe searched for these, and it was inconceivable that a man oould have butchered these twenty-nine sheep and left no traces of the deed. These traces were not found because they did not exist. Another circumstance to which the attention of the jury should be called was as to the identity of the sheep. This rested upon the most unsatisfactory evidence of class identification. Little, a witness on that point, had quite unconsciously over-valued his own evidence as to identification. He spoke of there being the difference between his sheep and others that there was between a Chinaman and a white man. That was a way of putting it whioh would not commend itself to the jury. Anyone could tell at a glance the difference between a white and a Chinaman, but with Bheep the difference would be more like that which existed between Scotch and English—a difference which could not be determined at a glance. Farther, Little saw among Healey's own—undoubtedly his own—sheep some that were sufficiently like M'Masters' sheep to baffle even himself. Millar, an experienced man and a oaref ul witness, also relied to some extent npon class identification, but he would not swear by it It was only a guide to some extent. When be saw these sheep on Healey's land he did not rely upon class identification, but went back and made another examination, and then said that the class was alike. Class identification was not sufficient, and the casual identification which Reid gave was well enough in a general way—useful for general purposes—but not the sort of identification upon which a jury would send a man to a dungeon. He (Mr Chapman) put it that this olass identification was utterly unsatisfactory, and yet it was all the jury bad to rely upon. The Crown evidently felt the stress of this, for they had actually parted from their case as to the sheep, and now stuok to the lambs. And as for the brand on the lambs, if it was altered it was inevitable that the brand must not only have been larger, but to preserve symmetry it must be made double the size. [Learned counsel here exhibited a drawing of the brand and of the alteration necessary to convert an L into 8 figure 4,] As to that wretched little makeweight of the scour, he (Mr Chapman) asked the jury to attach no importance to it whatever. The weed spoken of grew all over the country, and if Little's lambs had black scour Healey's lambs would be likely to have it also. Again, Coyle, the witness who professed to identify one of the sheep, was a man who had been steeped in litigation with prisoner. It had been shown that he had not spoken the truth either at the Warden's Court or here; and his was evidenoe on whioh they would not hang a dog. Another

point was that the police searched the rivejr on the Monday and found twenty sheep and seven lambs. The two other sheep were not found till three, days afterwards. Yet Coyle found the, twenty two on the Monday. , How did Coyle come to know more than the polioe? It was also an extraordinary discrepancy that seven lambs with altered ear-marks were not found at Healey's when, seven were found in the river. He (Mr Chapman) put it that the case for the Crown had utterly broken down, and with confidence asked the jury to oome to the same conclusion.

His Honor; in his summing up for the jury, said it was not neoesary, in order to convict the accused, that the jury should be satisfied the sheep were stolen on the date mentioned in the indictment, or that the number mentioned had been stolen. It would be sufficient if they found the accused had stolen any of M'Masters* sheep, and that; from the nature of things, must be proved by circumstantial evidence. If the sheep were M'Masters'—as the accused asserted they were his and that he had bred them, and it was impossible to suggest they had oome there by aooident—then they wonld have little difficulty in coming to the conclusion that the accused was gailty. The main question was: Were the sheep M'Masters', and had that been proved to their satisfaction beyond any reasonable doubt ?

The jury retired at 1 p.m. At 4 3d, it being understood that there was no chance of agreement, the jury were summoned to the Court.

His Honor: I understand, Mr Foreman, you have great difficulty in agreeing. The Foreman: Tee, your Honor. His Honor: lam sorry for that. I hope yon* will be able to oome to a verdiot, if you possibly can do so. The Foreman: I think, your Honor, there Is no possibility of this jury coming to a verdict. His Honor: If that is bo I cannot discharge yon. The law is very precise. Yon must be kept together at least twelve hours before being discharged. All I can say is that I will come back again later in the evening if you have agreed—the Registrar will inquire—and if yon have not then agreed I will oome back in the morning. The Foreman: Ido not think it is any use you ooming back to-night. His Honor : Is there any part of the evidence whioh you wish to call attention to? The Foreman : I think not, your Honor. The jury were then locked up. AUCKLAND. At the Supreme Court Duncan Munro waa committed to the Avondale Asylum for murdering his wife and children at Tanranga. The accused behaved in a very eccentric manner in the dock, and at intervals sang hymns. RESIDENT MAGISTRATE'S COURT. (Before E. H. Carew, Esq., R.M.) John Colehan v. William Brock (Waitati).— Claim, Lls 7s, amount of defendant's dishonored cheque and interest. Mr Sim appeared for plaintiff. After evidence, judgment was given for plaintiff for the amount claimed and costs. The Picturesque Atlas Company v. John Somerville.—Claim, LIO 10s, being the price of forty-two parts of the * Picturesque Atlas of Australasia.'—ln this previously-heard case His Worship gave judgment as follows: —lt has been sworn by defendant, and was not contradicted, and therefore I find as fact that M'Nair, the plaintiffs' canvasser, with the object of inducing the defendant to sign 'an order for the work, in answer to a question put by the defendant, made knowingly a false statement as to the price of the work, and that statement induced the defendant to sign the order. At the same time, I find that but for defendant's own careless ness in not reading the order the defendant could not have been deceived by the statement. The doubt I have in this case is whether, no trick or stratagem having been used, and the defendant being under no disability of any kind, he could have discovered with ordinary care that is, by reading the order the __ full terms of the contract he was entering into, as well as the limited authority of M'Nair to bind his principals, the defendant is justified now in relying on M'Nair'a untrue statement to rescind the contract. The same question, however, coujd, apparently, have been raised in Jeseop v. The Picturesque Atlas Company (Court of Appeal, November 16,1891), and the same plaintiffs against Phillipson (16, Vic. Law Reports, 675); bnt as it is not noticed in either of these cases, I doubt whether it would have been considered to have any weight. Judgment for defendant, with costs (345). Mr Carew added that be did not give his judgment with any great confidence, and he would be glad if the case were taken to appeal on the point as to whether the carelessness of the defendant allowed him to impute fraud.—Mr Sim applied for leave to appeal, which was granted. CITY POLICE COURT. (Before Messrs A. J. Burns, —. Brown, and J. Elmer, J.P.b.) Drunkenness.—Two first offenders were convicted and discharged. Alleged Assault. —Ah Wah was charged with assaulting Mrs Wickland at the North east Valley.—Mr A. C. Hanlon, who appeared for the defendant, stated that through some mistake his client did not appear, but he (counsel) thought he would be able to show the Bench, simply by crossexamining the witnesses for the prosecution, the trumped-up nature of this case. A short time ago Ah Wah issued a summonß against the complainant's husband (Andis Wickland) for assault, and the case now before the Court was the result of a summons issued as a crosß action. The original case was dismissed, and Wickland came before the Court on the day for which his case was fixed and asked that it be withdrawn. He (counsel) raised no objection to this on condition that the usual costs be paid. Wickland would not agree to this, and then applied for an adjournment. The latter was granted on condition that the usual fee was paid. The costs, however, had not been paid, and he (counsel) would ask that the Court should order that this be done before the case was gone on with.—The Bench did so, and the costs were paid. Evidence was then given by Mrs Wickland to the effect that about a fortnight ago the Chinaman called at her place, and she sold him some plums at 2Jd per lb. There was a dispute subsequently as to the price of the fruit, the Chinaman maintaining that tho price fixed upon was lsd per lb. Ah Wah waited outside till after Mr Wickland had gone to work, and he then came into the house and placed his hand on the shoulder of witness. The latter became frightened, as the Chinaman evidently intended to be guilty of an impropriety. She ordered him out of the house, but he would not go, and a dog that belonged to the place bit him. Witness cried out, and Mr Wickland returned and led Ah Wahoutof theplace. Cross-examined: The Chinaman did not beat her; he simply laid his hand on her shoulder. Witness did not set the dog on him. He made use of bad language after the dog bit him.—George Bashford also gave evidence.—Andis Wickland deposed that the Chinaman asked him to withdraw the case, and he told him that he would ask Mrs Wickland about it. He did so, and Mrs Wickland agreed. Ab Mr Hanlon afterwards wished him to pay costs, thecawwasnotwithdrawn. Cross-examined: Witness did not kick the Chinaman. His wife was not guilty of any impropriety, or else be wonld not have withdrawn the case.—This concluded the case, and, Mr Hanlon having addressed the Bench, reviewing the evidence of the prosecution, the case was dismissed. By-law Cases —Alexander William, a lad, pleaded guilty to a charge of burning scrub in Maclaggan street on March % and, having been cautioned, he was discharged.—The lad was then charged with allowing a vehicle to stand in Maolaggan street without placing a oompetent person in charge. The boy pleaded not gnilty.-Sergeant-major Bevin stated that the lad left the vehicle to burn the scrub.—Mrs Williams gave evidenoe that she had charge of the cart, and merely left it to go into a friend's house,—Another witness gave similar evidenoe, after whioh the Bench stated that the polioe had evidently got hold of the wrong party. The case would to o3Kßisie&