LEAP FROM A TRAIN.

New Zealand Herald, Volume LXIII, Issue 19320, 6 May 1926, Page 12

LEAP FROM A TRAIN.

PARNELL TUNNEL INCIDENT. / WAS THE MAN IN CUSTODY > j JURY ACQUITS ACCUSED. "Thank you, gentlemen of the jury." said Thomas Smith from the dock at tho Supreme Court yesterday, after tho jury had announced a verdict of not guilty against him on a charge that., on February 23, at Auckland, being in lawful custody on a charge of a punishable offence, ho escaped from custody. Mr. Justice Herdman was on the Bench, Mr. Paterson represented the Crown, and Mr. J. J. Sullivan appeared for the prisoner, who pleaded not guilty.

In outlining the caso for the Crown, Mr. Paterson said that on February 23 two prisoners, *of whom Smith was one, wero handed over to Constable Johnson, under warrant of remand from Auckland to Rotorua, where Smith was to be charged with theft. The prisoners were taken to the Auckland railway station, where Senior-Detective Hammond joined the party on the Pvotorua express. After tho carriage doors had been locked the prisoners' handcuffs were removed. Incident on the Train. Just before the Newmarket tunnel was reached the prisoner asked to be allowed to go to the lavatory. His request was granted/ Constable Johnson accompanying him. Having entered the lavatory accused Slammed the door, broke the window- of the compartment and, escaped from tho train. Later Smith was rearrested at Pokeno. Mr. Paterson asked the jury to keep out of their mind anything they may have read about, a constable

His Honor; Oh, I don't think you should mention anything about that. Mr. Sullivan: That's just the thing we want, to avoid.

Me. Paterson said ho was about to mention a certain matter only to point out that it had nothing to do with the guilt or innocence of the prisoner.

So.nior-Detective Hammond, in describj ing events after the smashing of the lavatory window, - said that he opened an adjoining window thinking that he might "get a smack" at Smith. He just caught sight of the sleeve of the man's coat as he slipped ,from the window ledge. "He fell against the brick wall," said the detective. "Ho had too much luck to fall under the carriage wheels. If I had got out of the window, I would have broken my neck." To Mr. Sullivan: The theft charge against Smith was dismissed at Rotorua. Case for the Defence. In opening for the defence ISTr. Sullivan submitted two points, viz. (1) that Smith was not held in lawful custody; (2) that tho charge on which Smith was held was dismissed in Rotorua, and, according to tho law in England, which applied also, to New Zealand, Smith was entitled'to acquittal. B. P. Cahill, a solicitor, gave evidence that the charge of tho theft of benzine was dismissed on its merits by Mr. W. G. Kendric; S.M., at liotorua. / Mr. Paterson: .Was not Smith subsequently charged with vagrancy ? Mr. SulliAran objected to this question. Mr. Paterson pressed his question, witness adding that he knew nothing about it. ■ /

Mr. Sullivan renewed his protest, claiming that the charge of vagrancy had nothing to do with the present case.

His Honor: Would you be good enough to keep quiet, Mr. Sullivan ? Mr. Sullivan asked that his objection against Mr. Paterson's cross-examination bo noted./

In addressing the jury, Mr. Sullivan emphasised that the warrant said Smith was to be kept safely in the Mount Eden prison till February 24 and was to bo brought before tile Court at Ilotorua on tho forenoon of that day. But on February 25 Smith was in the Rotorua train. __ By whose authority was Smith in the Newmarket tunnel on February 23 ? The jury must try the man on the document. There was nothing from the gaoler to vary that warrant. Question of Law. Mr. Sullivan quoted authorities to show that if a prisoner is charged with breaking prison or escaping from custody while held'on an offence, and is subsequently found not guilty of that offence, then there' was no offence of breaking prison. His Honor interrupted Mr. Sullivan's address to point out that Mr. Sullivan was not entitled to tell the jury what the law was. That-was His Honor's business. If Mr. Sullivan submitted to His Honor that there was no case to go to the jury, His Honor would give a ruling. Ho asked Mr. Sullivan to observe the rules followed by all barristers-. *Mr. Sullivan said that he felt somewhat grieved that His Honor should put a statement like that to him. "This is really a case of extreme simplicity," commented His Honor, in summing up. It was proved by the Crown that the man was in custody on a charge of stealing six gallons of benzine valued at 31s Gd. Was Smith in lawful custody? •His Honor said he was bound to rule that, when handed over by the gaol authorities to the police constable, the prisoner v,/as in lawful custody. That being so, there remained the question: .Did Smith escape ? There was the police evidence on that. His Honor ruled that, even though Smith had been acquitted of the charge on which he was held, he could be charged with escaping from custody. On a question of law, His Honor pointed out, the jury must take its direction from tho Judge. The whole case really resolved itself into a pure matter of fact. The jnry', who retired shortly before the Inncheon adjournment, returned at 2.45 with a verdict of not guilty. Smith expressed his thanks to the jurymen on hearing th« verdict.