Not Guilty.

Northland Age, Volume 27, Issue 45, 9 November 1927, Page 6

Not Guilty.

Murder Trial Fails. Dalmatian Discharged. Uncorroborated Evidence Not Sufficient To Convid Second Charge Dropped After a trial lasting two and a halt days, Paul Lendich, a Dalm itian gumiijtger. of Kauri Flat, near Kaitaia, Who was charged w.th murdering the newly-born infant child of Rose Tewhiu, a M-ori girl with whom he had lived, was found not gudtv and discharged at (he Srpreme Court, Auckland, at its last Sitting, the jury being absent from the Court for only 20 minutes. A secondary charge of concealment of b.rth will not be proceeded with. Medical evidence was naturally an important factor in the case. Dr H C Rix of Kaitaia, said that after a second examination of the gul he came to the conclusion tuat she had been delivered of a child of at least seven months m .turity. Dr E H Milsom, consuming surgeon at Auckland Hosp.tai, said he examined the girl aid found strong presumptive evidence that she had been delivered of a child which had reached a stage of development c insistent with life. The signs were alsojconsistent with the birth of a dead child.

Constable O’Gorman, said he was called to Kauri Flat to investigate a complaint against Lendich of assault. He was led to make further enquiries. The girl said accused had stolen her baby. This was denied by accused, who said he had never seen a baby. A careful search had been made in the neighbourhood of the whare, but no body was found.

Addressing the jury for the defence, MrG P Finlay said Lendich had never varied in his statement that there was no child. His attitude all along had been consistent. The defence still relied on the plain simple statement which accused had always made, and, if there was any doubt in the jury’s minds, prisoner was entitled to the benefit of it. “Always Wanted a Baby” Accused, giving evidence, said he wanted to marry the girl, but her mother would not agree. He wanted a baby, and had told Rosie to get clothes ready tor it. He denied the girl’s statements abouf a baby having been born. He had always wanted to have a child, and on the day when Rosie was taken ill he sent for Mrs Devich, who visited her several times.

Julia Urlich, of Kaipara, said she had been sitting in the Police Court at Kaitaia during the hearing ot the charge against accused. She said to Rosie, “Is it true you had a baby and your husband threw it away ?” Rosie admitted that Lendich had not seen a baby of hers.

His Honor: Did she tell you she hadn’t had a baby ? Witness: No; she never mentioned anything about a baby. Dr Rix, recalled, said he had reason to suppose that Rosie was suffering from a disease which predispused a woman to have a still-birth. There is a second indictment against accused for concealment of the birth of the child.

In his final address to the jury Mr Finlay said it was a well-established principle that no person should be convicted on a cr>«rge of such gravity as this on uncorroborated evidence. That was all the jury had in the present case. Lendich had never altered, nor attempted to alter, his simple, straight-forward statement. Something was born, but it was not a child. He wanted a child—a fact proved by the undisputed evidence that he told Rosie to get the clothes ready, and got Mrs Devich to come to his house to help Rosie through her confinement. Counsel’s Impassioned Appeal Speaking in ringing tones Mr Finlay said; “Take this man, who bat been brought from the

dungeon to the dock ; from the dock to the witness box, with the warder’s hand on his shoulder; nay, with the noose almost about his neck. He has never wavered never altered his original story. He has Ven frank and candid from first to last, and I want you to compare his candour and frankness with the weakness of the case for the Crown. “I want first of all to emphasise what our verdict wil! mean. Every element that goes to prove the crime of murder—the gravest charge in the criminal code — must be absolutely proved; proved without the possibility of the least shadow of doubt.’’ The conviction of a person withemt the production ot the body must be a dangerous thing, said counsel, who went on to refer to the case of three men who were hanged tor the murder of a person who had disappeared, but who reappeared two years later. If the body could not be found there must be absolute and unshakeable proof that life was deliberately extinguished. That was essential to uphold a charge such as this. The life of a man should not depend on the uncorroborated statement of one person alone. Rosie’s evidence had not been corroborated, and it was a very, very dangerous thing to convict on evidence of such a kind.

It was common ground that something was born, but counsel asked the jury to consider Lendich’s behaviour. He had never denied that Rosie gave birth to something, but the jury had to consider whether it was a living child. Lendich had never attempted to vary what he said in the first instance. His one desire had been that Rosie should have a child, and to help her at the time of the confinement. Then, toe, there waS the girl’s own evidence. The very beasts of the field and forest would bellow and low when their offspring were taken away. Was that square with the conduct of the girl. If there was one thought in the mind of a mother it was that of love for her child, and if the child was taken away she would be grief-stricken ; nay, she would be furious with the person who had taken it away, yet it was not denied in this case that the mother had gone back to live with the man whom she now alleged to have killed the baby. Mr. S. L. Paterson (prosecuting on behalf of the Crown) then addressed the jury. If, he said the girl’s story was an invention, then it was a very complete invention given in singular detail and peculiarly accurate in its physiological details. A case such as this was difficult to prove, but counsel submitted that the evidence was not shaken, and that the Crown case had been abundantly proved. The Summing Up. Summing up his Honor said so much had been said about the gravity of the case that it was unnecessary for him to exhort the jury to take the greatest possible care in arriving at their decision. “If you are not satisfied,’’ continued bis Honor, “with the evidence given by the principal witness (the girl—Rosie), you must acquit; but if, on the other hand, you are satisfied, no consideration of sentiment, no irrelevant facts or circumstances must stand in your way. The highest standard ot proof is required, and if the evidence fails to establish that degree of proof which is essential, prisoner is entitled to an acquital.” The judge went on to refer to the fact that no body had been produced. The principle was clear, he said, that if definite evidence of the existence of life, and of murder, was produced, then it was not necessary for a body to be forthcoming. That evidence, however, must be clear before a verdict of guilty could be found. The girl’s morals were meagre, and it had been established that she had told several untruths, for time after time, to her mother, her sister and also to Mrs. Devich, she had said that there had been no child. The Main Question. It was established beyond doubt that the girl was pregnant,

but the jury had to decide whether the child was born alive or dead, and in this connection the evidence of the medical witnesses, particularly of Dr. Rix, was of the greatest importance. It was established that the girl was suffering from a disease in which it was a common circumstance for a child to be born dead. In a final reference to the evidence, his Honor pointed to the fact that the girl had repeatedly declared that she had not had a baby. In face of the fact that she had said this on so many occasions and also in view ef the medical evidence the jury must exercise the greatest care be f ore they decided to convict. He hardly thought they could take the responsibility of deciding that a man was guilty on such evidence as that, but the decision lay with them and them alone. Realising the gravity ot the charge he was sure they would exercise the greatest care in arriving at their decision.

After an absence of twenty minutes, the jury returned with a verdict of “not guilty,” and the prisoner was discharged. Mr Paterson then rose to his feet and said : “In the matter of the further charge against the prisoner (that of concealment of birth), having regard to the verdict of the jury and also the fact that the prisoner got Mrs Devich to come in when the girl was taken ill, I propose to ask your Honor to allow application to be made to enter a nolle prosequi.” His Honor agreed to this course, and prisoner was discharged, pending the granting of the application. The judge thanked the jury for their services in what he described as a most difficult case.