DISAGREEMENT OF JURY

New Zealand Herald, Volume LXIX, Issue 21258, 11 August 1932, Page 11

DISAGREEMENT OF JURY

CHARGE OF MURDER MAORI BOY IN COURT JUDGE ORDERS NEW TRIAL OLD MAN'S DEATH IN HUT Th(i jury failed to agree yesterday at *ho conclusion of the (rial of Heta Fred Gardner, a Maori boy, of 15J> years, on a charge of murder. A new (rial was ordered. The hearing was commenced in (lie Supreme Court on Monday, before jlr. Justice Smith. It was alleged that accused murdered George Crewe, an old man, at Ruatangata, near Whangarei, on or about May 27. On resuming yesterday, His Honor said, in/regard to the last statement made by accused in the Whangarei police station prior to being formally charged with tho murder, that lie had come to tho conclusion that it was inadniissable in view of (he special circumstances of the case. He would put his views in writing at a later date. Further brief evidence was given by Detective Sergeant Robertson, of Whangarei, who was the last witness to be called. Case lor Defence / Counsel for (he defence said unfortunately there was a great deal of ovidence regarding petty thejts, but accused was not charged with theft. Obviously the lad had engaged in flights of fancy, but (hat and petty childish thefts did not mike him a murderer. The fact that two farmers in the same district had employed him was a testimonial to his character. At the end of April he started out on what might be called a marauding expedition of petty thefts, taking just tho things that would appeal to a boy, but this was not evidence of violent tendencies. There was no evidence that the boy vent near Crewe's hut, apart from tho evidence that a Maori, not identified as accused, wag seen on (he Thursday before (he tragedy crossing a paddock in a direction away from Ruatangata.' A few weeks previously the old man had a roll of notes in the but, but accused had no money when he reached the Whangarei police station. Counsel asked who had got that money. Crewe constantly had drovers to visit him and swaggers wero constantly passing through the district. Was it not possible, ho asked, that Crewe had foolishly spoken of tho money or shown it, and that someone upon whom suspicion had not fallen had gone to the hut to get it ? Death Before Blow Suggested Counsel said lie would make a further suggestion, although an unusual one. That was that Crewe was dead before ho was struck by the axe. He was an old nan who did not look after himself and suffered from what he thought was chronic indigestion, which a doctor had admitted could be confused with a form of heart disease. Some forms of heart disease were unobservable even on a postmortem examination. The Crown had to prove that Crewe was alive when he was jtruck with the axe. His appearance, when first seen by the witness who discovered (he body, was that of a man who had died peacefully in his sleep. His Honor said accused's conduct after reaching Whangarei should bo considered. Although exhorted by a constable to describe his movements he said nothing about a murder. Tho constable told liim to tell the whole truth and that lie had nothing of which (o be afraid. While His Honor did not think it should have been put like that, it certainly was an inducement to the boy to talk. Boy and Axe Not Directly Linked As against (he suggestion that perhaps Crewe was not alive when struck, said ]fis Honor, there was the evidence of a doctor that death resulted from a blow cn the skull. A suggestion had been made (hat someone of whom they knew nothing killed the old man and that the boy entered (he but at some time, when Crewe was either alive or dead, and took the gun. It was important to note that there was no direct connection between the axe and the boy. There were no finger-prints and nothing to connect the boy directly in any way with the striking of the blow. They would have no difficulty in concluding that (he axe was used, but. they must satisfy themselves that it had been proved beyond any reasonable doubt that the boy wedded the axe. . ~n The jury retired at 12.10 p.m. At 3.3U p.m. they returned and sought Hi* Honor's direction as to what constituted -reasonable doubt." His Honor said there nvas such a thing as fanciful doubt. I here might be a state of mind in which all (liings were considered possible. Hawng j-ecard, however, to matters of serious import such as arose in the present, case thev would have to have in their minds a moral conviction of certainty that would satisfy their consciences. At "4.15 p.m. the jury returned andl reported that they could not agree and that (here was no likelihood of their agreeing. On the application of the Crown a new trial was ordered for the next criminal sessions of the Supreme Court in Auckland, accused to remain m custody. Ihe jury was discharged from liability foi service for the next two years.