ALLEGED MURDER.

Manawatu Standard, Volume XLI, Issue 9224, 28 May 1910, Page 5

ALLEGED MURDER.

THE TRIAL OF JOSEPH POWELKA. ADDRESSES OF COUNSEL. The concluding stages of the trial of Joseph Powelka for the murder of John Patrick Hacket Maguire were enacted fohis morning before hie Honor Mr Justice Cooper, when counsel for defence and prosecution addressed the jury, his Honor summing up later in the day. There was again a very large crowd to hear the speeches. COUNSEL FOR THE DEFENCE. Mr Moore, in addressing the jury, said the first thing he proposed to do was to ask the jury to put away from their minds . all the sensational statements published in the newspapers about the recent happenings in Palmerston. There was no doubt that during all the excitement in Palmerston the accounts published influenced the people in condemning accused for everything. Counsel desired that all those things should be put away from the jurors' minds, an 4 that they should view the facts from a dispassionate standpoint. Dealing with the Crown's contention of accused's whereabouts on Saturday evening before the murder, counsel contended that there was no evidence as to accused's whereabouts after he had disappeared over the terrace on the Pohangina river on the Saturday. There was no evidence to show what time the letter was put into the billy can at Grammar's. Evidence for the defence given by Mr Curry might help the jury, fer he had showed it was impossible to have placed the letter there before dark. After that the Crown attempted to prove that accused arrived in Palmerston before 9.30, but the jury had to remember that the ordinary avenues of travel were closed to him. If accused had arrived in Palmerston before 9.30 he must have visited Slattery's before going to Farland's, and the Crown sought to prove he did so. The only evidence they had was that of the finger-print expert. Well, said counsel, it was quite possible that the finger prints were found on Slattery'e bottle next morning, but there was no evidence to show when those prints were placed on the bottle. They might have been on for weeks. Then there was the key. That jvas the only clue that the Crown had to accused breaking into Farland's house. If the jury found that the key did not belong to Mrs Farland, and that she was wrong in identifying it, they would have to find accused had not broken into Mrs Farland's house. If so, one of the' very strongest points of the Crown's case had gone entirely, for the Crown's theory was that the cap found on Hampton's lawn was stolen from Farland's by the person who broke into the house. The next thing the Crown brought forward was the wirelaying at Hampton's on Saturday night, and in connection with that point counsel said that if accused had been the man who laid the wires he would, when arrested, have been bearing the scar of the cut which, according to Hampton, had left so much blood on his drive. Then came Hampton's experiences of Sunday night. Hampton had said that when he heard the thud of a man jumping the fence on the other side of the road it was about 7.15, and he recognised that man. Counsel contended that at 7.15 that night it was quite ■ dark. The defence,had called evidence to show that an hour after sunset it was at that time as dark as it would be at any time during the night. The prosecution had admitted that the night was an exceptionally dark one, and at that time must have been cloudy. The witneeses called by the defence 6tated that they had made demonstrations, and even on a moonlight night it was impossible to recognise a man after he had got inside the gate. Mr Hampton's story was one the details of which had been filled in from the imagination. Mr Hampton said that prisoner "had worn on that night a three-quarter coat. The Crown had therefore attempted to fit the prisoner into a three-quarter coat, and had called Mr Lane to prove that the coat prisoner had on when arrested was stolen from his house on the Saturday. However, Mr Lane stated his opinion that the coat was not stolen till after Tuesday, and therefore if the man was wearing a three-quarter coat when Hampton saw him he could not have been the prisoner. now proceeded to deal with the affair on the lawn and Detective Quartermain's part in it. He contended that the statement given by Quartermain immediately after the occurrence to Dr Wilson was more likely to be the accurate one. Counsel ridiculed Hampton's statement that he heard a cry from the intruder which he recognised as accused's voice. That, he alleged, was a little more of Mr Hampton's padding. When Quartermain and Hampton camg on to the lawn in response to Maguire's cry, counsel contended there was no evidence to show how far off they were from the two men struggling on the lawn. As far as the evidence was concerned it was absolutely unreliable, and it was just as likely that Hampton and Quartermain might have run right into the other two before the shots were fired. There was confusion as to the number of shots fired. Maguire said Quartermain "had fired two or three." Krivari said he only heard two, and Quartermain stated to Dr Wilson that the assailant fired a shot; and he (Quartermain) had fired two at the flash. Counsel read the deceased man's evidence, and contended, that he was uncertain who had shot him. Whether the sergeant's death was the result of the assailant's shot or an accident of Quartermain's revolver was the question the jury had to decide. The question of ammunition was next dealt with, and counsel said Tisdall's evidence was that the appropriate ammunition for Quartermain's revolver was one of two kinds and the bullet found in deceased s body was one of those kinds. Why did not the Crown call Mr Purdy, the owner of Quartermain's revolver, to say absolutely that he had given the revolver to Quartermain but no ammunition with it I Till that was done counsel said that avenue had not been closed, and alleged ther was still a possibility of Quartermain being responsible. The blow from the handcuffs next came under review, and counsel pointed out that the first thing the police would have done when accused was arrested was to look for a mark on his face, or any other scars on him. But no evidence whatever had been given on that point. The slightest mark found would have been surely mentioned by the police. But they were silent. Sergeant Maguire s statements made it clear that the assailant was wearing a hard hat; if so, then the cap found had no significance. Referring to the weighing of the bullets counsel pointed to the confusion in the weights and pointed out that the bullet found in Maguire's body weighed 8,2 grains. One of the bullets found in Vowelka's revolver had weighed 84* grams. According to Mr Graham the adjustment of the scales only accounted tor s of a grain, and there was still two grains difference. Mr Tisdall had stated absolutely that all the bullets were of a standard weight, but the weighings showed that Quartermain's bul ets variec from 78| to 83. It had to be proved absolutely that the bullet- found in Maguire'a body was identical with that found in Powelka's revolver That v,as ' the main strand in the Crown s rope. 11 ' that went then the rope would go too. ; The next point dealt with was- the Richards incident, and counsel considered , it peculiar that the police never looked 1 for a man with a scar on his face. Re- . garding the "gallant arrest" of accused, ! counsel considered there was nothing gal- • lant at all about it. Accused was asleep r at the time. He was worn out with long 1 travel and the stout he h w ad drunk had , sent him into a sound sleep. If accused 1 had been the desperado he was made out . to be, he would not -have been arrested so easily or without bloodshed. Continuing counsel said that' in. working up the defence he had received every consideral tion from Detectives Oassells ana oiai- dells, but he had to protest against what (' he termed the gross unfairness of the e prresting 'nolico .in questioning accused 1. wIT-n they" knew he was to be charged & with murdor. Counsel did not think the jury would believe for one moment that

accused had made the remark attributed by the police. It was very strange that none of the civilians had been called. The police said the-words were epoken very low; that was not consistent with the words used by accused, but was probably stated so that civilians would not have to .bo called. In conclusion counsel contended that the Crown had to leave nothing in the region of conjecture and they had not done eo. The jury could not convict a man on euch evidence. Counsel considered a significant fact in the'case was that, accused etill retained possession of the revolvers till arrested. One of the things always looked for in an accused person was the attempted concealment of any weapon _ wit- 1 which the murder had been committed. If accused had shot Maguire would not the first thing he would have done been to get. rid of the revolver ? Could he not easily have dropped the revolver and cartridges into the river? He would still have one revolver left. But accused had not done so, and his retention of the revolver was not the action of a guilty man. Counsel, in conclusion, pointed to the responsibility the jury had in convicting an accused man. It was, a thousand times better to let a guilty man off than to convict an innocent one. MR. LOUGHNAN'S ADDRESS.

Counsel for the prosecution then addressed the jury and contended that all the points indicated in hie opening address had been proved —that is, sufficient evidence had been called to support those points. Counsel said he proposed to follow briefly the points of the case as outlined by counsel for the defence. Before doing so, counsel referred to the evidence in regard to Quartermain'e revolver. At the outset'Mr Moore had stated he would bring evidence to show that Quartermain had purchased cartridges in Palrnerston. Practically under the direction of his Honor that evidence- had been withdrawn and then* counsel for the defence had shifted his attack to an entirely different standpoint, and asked why Mr Purdy, the owner bf Quartermain'e revolver, had not been called. Counsel said that if Purdy had been asked for he would have been called. Quartermain had not been questioned on the matter, and hie statements had gone unchallenged. Referring to the Ashhurst incident counsel said he did not want to spilt hairs on the matter. He pointed out that there was nothing in the Crown's case to show that the letter was left.. before. the prisoner came/ to Palmerston (if he was the man). He might have returned after the thefts had been committed. The evidence was put in to prove the. broad fact that accused wae in the vicinity that day. There was no . reason why an athletic young man could not have got to Palmerston before 9.30. The evidence of the finger print expert was that he had been at Slattery's, and according to Slattcry he must have-been there before 9.30 . As, to the.-'key,t,it was common ground that it fitted. Mrs-Tarland's lock; it was found on the accused.. The cap found on the lawri was undoubtedly taken there by the man who murdered Maguire; it came'from The third point in the central group of circumstances was that of the bullets, and all three pointed strongly in a certain direction. Counsel for the defence had argued that the presence of a boy's hat in Farland's had shown that the theft had been committed by a boy. But the logic of the thing was just the opposite. The person who had come there did not want a boy's hat, so he had left it and taken a man's in its place. Regarding Hampton's 'evidence counsel eaid he was with his learned friend when ho stated that before he eaw the man coming to his house he had accused in his mind. _ If Hampton had not seen the man coming ho must have invented the facts when he said that he saw the man jump, straighten himself and then put his hands in his pockets. If he 1 had invented them he was an untruthful witness and could not be relied on in any particular. incident seemed to be considered one of great magnitude by the defence, for a lot of evidence had been led to attempt to disprove Hampton's statements. Regarding the tests made counsel'considered it was extraordinary that those tests were not made at the. proper hour, but considerably later. The witness for 'the defence admitted that the light differed greatly on various nights, and counsel contended that the only person to judge properly was the man who had Tieen there at the time. Counsel objected to the way Lane's evidence had been used by the defence, and stated it had been brought forward in all fairness. Dr. Wilson's statement of Quartermain'e account of the proceedings had no significance. Even if Quartermain had fired at the flash, as stated, it would have no significance if there was no connection between Quartermain's ammunition and the bullet found in the body. Dealing with the-weighing, counsel said that Tisdall's weighing of the bullets in his own scales and the weighing of the bullets in Leary's scales had agreed. Only two bullets nad been weighed in both scales —the one taken from deceased's body and one from Powelka's revolver. The weights, counsel submitted, were as far as they went conclusive. The Richards epieode ndxt came under review.' Mr Richards had told a consistent story throughout. and counsel for the defence had referred to the state of affairs prevailing at Terrace End at the time. Counsel did not wish to deprive the defence of any significance it could get out of the incident. It was not part of the Crown's case to euggest that the man who went through Richards' cart was Powelka. This concluded the review of the defence,, and counsel then turned to his own case. The central aspect, of the matter was the identification of Mr Farland's key, the cap and the bullet. It had been .stated the key and lock were of a type exceedingly common. First there was Mrs larjand'e absolute identification of the key,

and ehe had explained bow the rust marks had got on to the key. The general appearance of the key with the rust partly, rubbed oft" enabled Mrs Farland to speak to the key, consequently the expert frankly admitted that he would not like to say a person constantly using it could not identify it. Then Mrs Wilson had been asked about a key on a nail in her shed, but she had denied that it was there. Counsel pointed out that the accused had no key when he left the cells in Wellington. The key fitted the lock from which it was mieeed. It was found on accused and claimed by Mrs Farlnnd. The cap was next dealt with. Robinson had no doubt that thecap was hie. It was missed from Farland's and was found on the lawn. If the sergeant was right in eaying his assailant had a hard hat, it "was quite possible that he could also have had a cap. It wae perfectly immaterial whefher he was wearing a hard hat. It was not necessary to prove that the cap was worn by the assailant. It was only necessary to prove that it had been left by him. A suggestion had been made that in the meantime the crowd might have got in and left numerous'caps behind, but the evidence was all against that. The bullets were next dealt with. The weights taken yesterday showed that four bullets taken from L.C.F. cartridges in Powelka's possession only differed m one grain, the lowest being 82 and the highest 83. The bullet taken from the deceased's body weighed 82 ounces, ana was entirely different in every particular to any of Quartcrmain's ammunition. There' was no single characteristic in which they were alike. There could, therefore, bo no suggestion that Quartermain had shot the sergeant. Further there was the evidence of the scorched clothing, showing that the fatal shot must have been fired at very close range and there was no suggestion that Quartermain was at close range when ho. fired. The revolvers in accused's possession were both now, but , each bore evidences of having been discharged once. The Crown's theory was that one had been fired at Kendall's and one at Hampton's. Counsel dealt further with the incident at Farland's and laid down the theory that as soon as accused got away at Ashhuret he made his way through the willows along the riverbed, found himself in the vicinity of Palmcrston, and being under the necessity of providing for his bodily wants went to a handy place, "which happened'to be Farland's. The finger prints at SlalteryV showed he was in the vicinity of Farland , s that night. In regard to the positions of the actors on th-. , lawn, counsel said Quarter-

main and Hampton. ha<T fill . in defining their Pf contradiction: «mld b^ n J the other evidence. Counsel ..-?ree.-wgg^ hie ■learned, friend, in the breach .of .|M««Sfes committed by a police, ;«&«»*$ an accused man -questions.. /But.,;.«* ■•.™%& present instance this'had for Constable Thompson had; etated that he did not;know that-'accuewfeg was to be charged with murder wfaea ne;j,| tusked him the shot "P°°si;■£ Maguire?" There was to , the jury, to conclude th%| the v story : been concocted by the-constables. asked was the answer to ".the ■ que6tio»if|| consistent with guilt? If sosjt wae'etrongs&g correlation of the other evidence. K -nofea it did not in any way weakeirithe other,i|j| evidence. Counsel then the definition of murder, and sh^fried: that ig the present case would come '-inxdeT the■ :■:; definition of murder, because onepof the ■;.■; definitions stated that culpable homicide ;■'[s was murder when it was.meant|tO:,i n "' flict grevious bodily injury to resle||: ; ap- ,- prehension, although there was •; ",'': tention to actually kill. . The iacbs'yi^e'. -J -i accused was a fugitive from lawful eus& '■■■•).! tody; he was found in possession ot ■ ie-sJ*l volvers when arrested. He wanted revolvers for no lawful purpose whatever." : When an arrest was made at ;~j Pahiatua he was in possession of re- •'' volver; when arrested his revolver was at ■;■'■'s, full ccfck. These facts showed that ac- '.; ■ cused carried arms for the purpose of resisting arrest. Finally, counsel said it ...;■ was his duty to present the whole of the aspects of his case in the strongest way possible consistent with fairness and justice, and he hoped he had done so. The Court adjourned at 1.15, and hie. Honor commenced his summing up afe 2.15. A report of the eumming up will appear in Monday's issue.