DISMISSED.

Gisborne Times, Volume LXVI, Issue 10456, 10 December 1927, Page 2

DISMISSED.

ni iRG’F or f.NT'.bvfCA’tiAN 71 AO A IN-ST 1> if EN N AN. SEQUEL TO C.O.'tfr’l’ FATALITY. TjiV curutiii Was rung down on the :r,igic occiiMi-pce on tiie evening ol .September - i last, v. hen' a service travelling eel',, sen Port Awanui • ansi Ruateiia. Cc-psized and Mielutcl ..“tied’.* In the Police Court yevterdtiy. 5i:,.., Die driver the ear. Jolm ..red Brennan, we.-, charged v.-ilh being huoxicatcd v.Title in charge of a it, •,•. ill be renumbered that Brennan was charged w.tli m-gi.geui clnv-* in/ j,t the Port A wan 6 Court some ks ago hi (.oiiilecUoii the sam,; inatient . out lie aas ,-n ■ ■ aii tesl . the i.videnee iw the prese-ut on on a mid charge of iniuxicaiiau v.hilst ;n cilttrge o: llie car was yG-i taken at tiiul liearing, and flu- case v. as ittljourneu to ( mb..rue tor it.-.- hearing of the defence. Legal ar • ument as to iVlietlier the t iiarges* c .aid be se- ; ar.,t;.fl was h-. ai d ye-ter.lay, as a result oi v hieli the second charge Mr. Waiu-hop -aid it had hern arranged the legal us pi ft- should be ayuaed and ilu-n if t! ■ court was sati-lieil that pinna i.e-i.e case bad nun made out ’ugamsi. Brennan be oti i T ask for an adjournment to i nablu evidence to be railed for the defence. Counsel explained that j- rennuu had been v ailing round ti.r.-n for M.li, hearing ol the case, 1,, u jug to the absence from the distrait of the inspector of Police a date i-etiM not be taxed and meantime Li ennaii had gone to .Rotorua in search o: work. The Magistrate: It was the best tiling" lie could have done. Opening Ins argument Mr \\ auehop .aid' that the present charge was under s ■•• lion IN of M.V.A.. whereas tiie former dealt with at the Pori Awanui Court was under section 27 of tiie Act. Tho police chose to frame, the major charge, mak-tig M of negligent driving, rind the wlmlc of idle evidence ior the proseetltiou was directed to prove intoxication, so that ill eifeel, what Brennan was tried on at; Lori Awanui was a charge i f iuloxualiou in charge of a motor ear and causing tin death ol a man. Me submitted that the charge u. iigen; dir, leg incorporated vhe iess.r olfenca of intoxiention in --hitrge of a ear, but nova the police .vere asking the court to regard the charges a.- .separate, if there was any doubt on some points it was definite that Hickey had been killed in the accident. The police were- not entitled to reduce a charge as hail been done in this east-, he submilLc:! Without the eon-on! ci' the accused. Tin only charge that could be lick: against Brennan was under Section L'i. and therefore the other cliargt mu-L fail. He could have been char, oy'd with manslaughter, hut not v. it a - minor ctieuco, ami if the charm wa- to be proceeded with at all t: .must he under Section 27 of the- . Rotor Vehicles Act. Counsel eitee several authorities in support of Imioiiteiif.ic.ti. On the charge . alretio; heard at ibu t Awanui the police evi Jen-e alleged that- the negligence wntlie* result, ci Brennan’s intoxieatiim l.ut the Court had already ruled that no jury would com i( t on jlmi evidence, and therefore he submit’.!' Unit this Court, sitting as a jury, .(.aid mil. eon v ivl a man on tilt charge of intoxication. !l the evi dc,;ce raised a strong or pj’obahk prcsauqil i'ii < ; |' guilt. Hretman weal, undoubtedly have been committed I’m trial and ihcrcior' a.s the test)mom v..c- tn.t strong cuoiigh to warrant sm. It'll course, he cold ended that tie present proceedings must- fail. Th« !i-i.-..-a- t'c.af. couid l.u> .said in Brennan's favor v.-as that the {.Yuri, htr dou’fl whellmr lie was intoxicate' or not, and as accused was given tk, hi:uclit of the doubt ill the first east lie was equally so entitled to it on this < barge. Counsel then Craverset the i videnee at length, citing pas -.-e.es which, lit" maintained, support • I the contention Jhal; Brennan wn. not intoxicated. - Inspector IN vies, fo-r iite jirosecu fioe.. said chat, alter Listening care !u!! •• to coun.sei’s address., both o points o! I act ut.il law. he-was .-.1:1 eom'jneei! there was no bar to tin present pro.e, dings. 4t was e-loaiT laid; down-in .the Act. in Section 2, he said: that not only must the dri \e.r *J»i> iiitc.xii-ateil but lie must coiii snip some act or omission, tints causing the death.of a mail, whereas Sec lieu 28,. .under which proceeding, were now being taken, made no re ieronce to ctiinmiliing,:tn act or iiinis -.ion- He .submitted-the two oiTence o ;id l e sejiarv.miL ami if the indict arf ■ T-harge faiic'd the- Court cotth ■-ij.l .deal with :ueused on the secern •i,. if [ii • : (.mu was .sati.siic' .-. prima facie case had been ‘ s-tah jisiied. He frankly admitted if the-r was any doubt, that the man was silt ies ihg from coneitx&ioti and aas no ’litoxicatoil accti.-ed should be give tile'* lain lit. The crux of the east ior the prosecution lay in the quo.« t’oii : \: hai state cl sobriety ua; Lrc'ntian in when lour.d oil. the road side? and wlta.l was his- conditio' when found by the police.:-’ He con tended that the evidence of experienced police officers ideaM,v- shower. Brennan Was inioxit’iiLcd. The Magistrate said.that, wiihout. disagreeing ivtlt either counsel oi the. In -pcctor of I’ohue on jioints o:. law. it appeare-.i lo Ivim that-, a] Ihoaglt there "ere the essential isgrerlitmls in th. two charges as. to nlitic* the Court not to send l.ltr ec"lived for his trial on the first -•barge, the position might be such as to v. at rant tiie Jichce Ja'occ'ediug to prove the second charge. A peculiar position Mien arose. ’J here was no 'doubt- that in the (barge ot manH. .Miter tiie whole cf .tiie evidenei ■as not. siiliieieiit to satisty the C oi:at. to semi the tiecttsed ior hi: trial an.-I although the second charge vy.s |-eriiurn the 'ante evidence v. e-ahi operate t>> put tin- accused m I. trial. lit tlii- ease the circumstances shewn by the evidence were sa serious that the man should not ’ ■ calk:! upon tor his defence but be tried by it jury. In tin 5. urc’s opinion the position was not' i)-;eN:sivtk because, on the evidence. t’u-1 e v.tts an inherent weakness wiiir-h was. with all the circumstances'and surroundings, just as consist--;s with concusstiin as witii mtoxica--J.aj. |f then the evidence create e.a ahernativc ' position and leaves the Court in the air. it was useless i. proceed further, and it certainly won Id be unfair to the defendant to j, -o.i call lengthy evidence when „t the cb.se of the ease for the protion the Court was in doubt. It .- s >erii:iis charge and one which I’ fJ wcighe-l heavily and the benefit i 7, doobt must go to the delond-a-.it. and tho ease would ho dismissed.