CONFLICT OF EVIDENCE

Manawatu Times, Volume LIV, Issue 6887, 17 April 1929, Page 3

CONFLICT OF EVIDENCE

Police Prosecution Fails MOTORIST DEPENDS SERIOUS CHARGE A youthful Feilding motorist, W. Gosneil, pleaded not guilty before Mr. E. M. AVatson, S.AL, at the Feilding Magistrate’s Court _ yesterday when charged with being intoxicated whilst in charge of a- motor-car. The alleged offence occurred on the night of February 26 oh the Feilding-Mt. Stewart road. Sergeant Cahill prosecuted and Mr. H. R. Cooper, of Palmerston North, represented the defendant. Cecil Saunders, butcher’s assistant, of Feilding, w'ho knew defendant by sight, said that on the night of February 26 last he was driving with Geo. Mann in a. motor-car on the Awahuri road to Feilding. Witness met defendont near tko junction of the road which leads from Mt. Stewait to 1 ending. Defendant called out and when witness stopped, defendant, “a bit staggery,” asked if they were going to Feilding. On being told that witness was going to Feilding, defendant said he had three flat tyres and asked for a ride. All witness could sec was. that tlio. car had been driven on the rim. The lights of witness’s car were showing up on defendant’s ear and all witness could see was one flat tyre —or a bare rim With the tyre round tho axle. Defendant’s speech }yas “a bit thick.' ’ When he got into witness’s car, defendant sat on the back seat and then allowed his head to rest on the seat. To Air. Cooper: AVhen witness asked defendant if he had capsized, he replied "No, just three flat tyres.” AVhen defendant was put down in Alanchester Square, he did not want witness and Alann to leave him and asked them to direct him which way to go home. To Sergeant Cahill: We told him to go straight up Kimbolton road. De* fendant was so lost that witness had to direct him where to go. George F. T. Alann, butcher, of lending, said he drove the car with the last witness and his wife on the night under review. He met the defendant in tho circumstances described by the last witness. Defendant could walk fairly straight. Witness’s impression was that defendant had had a capsize—this was suggested by the state of his hat and the car. Defendant was not paralytic drunk, nor was ho was sober Witness could see that one tyre was off and as far as he could see, the other tyres were all right. Defendant s speech was fairly clear —although no did not talk much. Witness gave Gosnell a ride to Feilding, defendant laying on the back scat. Witness was not close enough to smell liquor on defendant, but it was necessary to direct him tho way to home on arriving at Manchester Scjhare. To Air. Cooper: AVe heard the car coming and then saw it. Defendant pulled it ffp on tho correct side of the road. Nothing was said about going to Bain’s garage or about a broken

jack. . Constable Johnston said that in consequence of a complaint he went to Bain’s Garage, where ho saw defendant at .10.30 p.m. Witness waited for defendant to come out, as he could sec ho was in a state of intoxication. A\itness asked Gosneil if he had had an accident. Defendant said "No, Ivo had a puncture.” He admitted driving a car which he said had been left on the Feilding-Awahuri road. Witness told him he had had far too much drink to be in charge of a ear and if lie he got into a car again in his then state; he would arrest him. Defendant smelt strongly of liquor, his eyes were blurred, and bis speech thick and lie was not steady on his legs. Ho was not drunk enough to arrest as a. pedestrian. His whole condition suggested too much drink. Defendant was a prohibited person at the time. To Air. Cooper: Air. Harford, who was in charge of the garage, was present with defendant when witness saw him first. It would not be possible for Gosneil to get iri the state he was within a matter of three minutes. AVitncss had never seen Gosneil before, that night. This closed the case for the police. Case for Defence.

For* the defence, Mr. Cooper said that his evidence, apart from the element of doubt, would be tha<. defendant was not intoxicated that evening, or sufficiently intoxicated as to be incapable of driving a car. Maunders and Mann said nothing about smelling liejuor on defendant and they differed as to his spccchUind walk. Ronald George Harford, attendant at Bain’s Garage, recalled that Gosnell called at the garage at about 10.30 p.m. on February 20. Gosncll asked for a jack, as his own was broken, and his car was at Mt. Stewart. Witness gave defendant a jack and defendant rang for a taxi to take him to the car. Witness did not think defendant was intoxicated —he could not smell liquor on him. Witness was perfectly sure that Gosncll w r as not intoxicated. To Sergeant Cahill: Witness was speaking to Gosncll for ten minutes. He said to Constable Johnston that Gosncll was quite alright. He would deny saying that Gosncll was “pretty bad.” Do you remember telling the constable that Gosncll was pretty bad ? I did not say that. I said he was quite alright. Continuing under cross-examination, witness said that Gosnell saw him last Wednesday night and asked whether he thought defendant was fit to be in charge of the car on the night he came to borrow a jack. Witness replied, “Of course.” Nothing more was said about his condition. Harold Hayward, taxi driver, recalled that Gosnell rang for him and witness attended to take Gosnell to his car at Mt. Stewart. Gosnell handled the jack, putting the spare on, and then

drove off, ..with witness following. Witness did not notice any signs cf liquor on Gosnell and in his opinion, he was quite capable of taking charge of a car.

To Sergeant Cahill: "Witness xemeinbered talking to Constable Johnston about Gosnell’s condition and did not recall saying that he had “sobered up considerably.” He bad known Gosneli for two years aud he had always treated witness right. What do you mean by treating you right i —Well, he had always treated me. as a. friend.

You are friends ?—Yes. In answer to further questions, witness said that he assisted Gosnell to change the wheel. To the Magistrate: Gosnell did the whole of the work, excepting that witness held the spare wheel whilst Gosnell changed the other. Witness did not smell any liquor on defendant. To Sergeant Cahill: Witness did not tell witness that the tyre was twisted round the axle. Gosnell came Tound one Sunday morning to discuss the matter. Samuel John Harvey, baker, of Halcombe, said that at about 11 o’clock on that night he saw Gosneli near his ear, which was standing well off the road on the Correct side. He stopped to ask if everything was alright, as he recognised Gosnell. There w T as nothing about Gosnell’s condition to suggest that he w-as drunk or had been drinking. He spoke to Gosnell for about two minutes and then drove on. Witness would not swear as to the hour._ In summing up, the Magistrate said that the charge was a serious one and if there was any doubt in the mind of the Court as to whether the defendant should, or should not, be convicted, then it was the duty of the Court to give defendant the benefit of such doubt. Two witnesses, wbo had given evidence for the prosecution, described the state of defendant when he got into the car on the Mt. Stewart road. It was clear that no definite state of intoxication was left in the minds of these witnesses. As a matter of fact, their evidence was very largely contradictory. One said that defendant a speech was thick and the other said that his speech was clear and fairly rational. One said that his gait was staggering, and the other, that he walked alright. Both of them left the impression on the Court that the car was efficiently handled. The witness Mann said that although Gosnell was not completely intoxicated, ho was nevertheless not sober. The evidence of Constable Johnston was very strong against defendant and if. the Court were to convict defendant, it would he practically on that evidence alone. The Court could not do that for two reasons (1) because it was a very serious charge; and (2) that evidence jsas not strong when the evidence of the other two w'itnesses and that of tlm defence was considered. In conclusion, His Worship said there was a donbt as to defendant being guilty of the charge. The information was accordingly dismissed. Defendant was then charged with a breach of his prohibition order on Febraury 26. Defendant's counsel said that while it would be difficult for the police to prove this charge, his client had no intention of going into the bo.t’to deny the allegation. As a matter of fact, his client admitted having had two liquors at Marton after dinner on the day of the offence and in these circumstances counsel had advised him to plead guilty. The prohibition order had been taken out by defendant voluntarily and it had expired on March 29. The Magistrate said that there was no reason why defendant, should not be treated as a first offender. He would be fined 20s.