LEGAL POINT RAISED

Evening Star, Issue 23496, 9 February 1940, Page 8

LEGAL POINT RAISED

REVOLVER DISCHARGE CASE JUDGE REJECTS COUNSEL'S REQUEST [Per United Press Association.] WELLINGTON, February 9. A legal point raised by counsel for Charles Theodor Nelson, a seaman (51), who was found not guilty by a jury of attempted murder and discharging a revolver with intent to do grievous bodily harm to Stanley Meredith Hunt, slaughterman, but guilty of causing actual bodily harm in circumstances that, had dentil occurred, would have made him guijty of manslaughter, was overruled in the Supreme Court to-day by Mr Justice Ostler, who sentenced Nelson to three months, with hard labour. Nelson was charged on the first two counts, but a third count was added to the indictment. Mr Hardie Boys, counsel, asked His Honour to-day to state a case for the Court of Appeal under section 442 of the Crimes Act, as to whether it was coriipetent to amend the indictment after the jury had acquitted the accused of the only two charges on which he was placed on trial. The jury gave a verdict on the two 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, xtccused had not previously been charged on a 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 wjis not actual bodily harm, but merely discomfort. Mr Cunningham (Crown Prosecutor) submitted that the accused had not been prejudiced, because the _ third l charge came from his own version of the incident. The Judge said an indictment could be amended in conformity with proof, as long as it did not prejudice the accused, and in his opinion the amendment actually had been made during the trial. Counsel had attended in his room, and he had 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 being put to it. He would not state a case _ for the Court of Appeal. Prisoner, if he so desired, would have to go straight to the Court ot Appeal.