The Courts.

New Zealand Mail, Issue 1060, 23 June 1892, Page 28

The Courts.

SUPREME COURT. CRIMINAL SITTINGS. Wednesday, June 15th. (Before His Honor the Chief Justice.) K; THE EKETAHU N A MURDER. The hearing of the charge against Charles Smith of having murdered John Dalton at Eketahuna on the 12th February last, was resumed yesterday week. John Anderson, licensee of the Eketahuna Hotel, stated that be heard some men wrangling in the street about 12.15 a.m. on the 12th. One of the men was pushed over. Afterwards two men tried to get into the hotel. Dalton was one of the two men. . Walter Hedges, saddler, gave similar evidence to that given by him at the last trial. A little after 11 p.m. on the 11th he heard three men talking near his house ; something was said about money, and one of the men said “ you can’t have it ” and “what are you doing with that knife” Subsequently he heard men quarrelling, and later on he heard a noiso as if someone was being attacked. In cross-examination the witness stated that ho had tried to keep out of the case, and that was why he did not volunteer to give evidence before at the Coroner’s inquest. He admitted thal be had been convicted of indecent assault in the South Islandand sentenced to five years’ imprison ment. In answer to Mr Gully, be said he was subsequently exonerated from all blame and recompensed. He, however, had very little remembrance of the matter. Mr Gully stated that all he knew was that the man was in a dying condition and was removed from the Hospital. The witness said he only remembered what he was told about it. When he came out of the Hospital he had an order on the Public Trustee. To Mr Jellicoe : Did not remembpr what gaol he was in. He could not tell how long it was after he was sentenced that ho was sent to Wellington. He knew nothing about the matter except what had been told to him Did not think the money the Public Trustee gave him was the balance of the proceeds of his property, because his wife had sold it all herself. He had been told that he was compensated for being in gaol. After the last trial one of the constables who was standing in the Court asked him why he did not speak about the compensation he had got. He did not know who the constable was. To Mr Gully : He believed he had had a tumour in his stomach. He was unconscious for some time. His illness left his miud a perfect blank. His Honor said that some one must know the facts of the case. He did not say that he was attaching auy importance to it, but the jury might thiuk that a man who had been convicted of indecent assault was not to be believed. On the other hand, they might think that on a charge in which he was not apparently interested ho was to be believed If the jury should think from the fact of his having been convicted that his cvideaoe was to be discredited, then it would bo satisfactory to know that for some reason or other the charge was not properly proved, and that he was afterwards treated as an innocent man. Mr Jellicoe sai-1 the witness’ statements were so extraordinary that it was evident the man really did not know what he was saying. Mrs Anderson, who lives at Eketahuna, gave evidence to hearing men quarrelling in the road late on the night of the 11th. John Voungsen, recalled at the request of Mr Jellicoe, Btated that he remembered seeing the pipe produced in the possession of DaltoD. Had often seen Dalton cutting tobaooo, but he had not seen the handle of the kDife. Dalton frequently went out fishing, but he had not seen the handle of the knife he used. By Mr Gully : Could nob soy whether the knife produced (the one found on Dalton) was the one he had seen Dalton use.

Frederick Jaggerhorn, who was not examiued at the previous trials, residing on the Alfredton road, Eketahuna, stated that he was at work in his house on the 11th February, with Mr Dowdesworth, who left him about 11.15 p.m. Shortly afterwards witness wont to bed. After he had been In bed some time he heard some voices in the direction of Bren well’s backyard, which was open to the street. He could not say whether there was the voice of more than one person. He also heard footsteps, which were apparently going Into the yard, and then they appeared to go back on to the footpath. The voices sounded like two people speaking. After a time the voices seemed to come from the direction of the path or road. He heard a very Joud and angry voice, and another which seemed to ba mo.-e subdued. He did nob iake any notice of what the loud voice said. He could not say how long the talking,lasted—he should say it lasted from a quarter to half an hour. It seemed to him that the sound of the voices died away by degrees, bub he did not take much notice, as he was reading in bed. Some time after that, as he was trying to go to sleep, Brenwell’s dog barked, and he went outside and called to it to lie down. He did not see or hear anything, so he went back to bed. Five minutes afterwards the d. g ‘ arked again, so he went outside and fetched it in, and went to sleep. The dog was growling when he fetched it in. Grossexamined : The dog had not frequently troubled him previous to that night. He made a statement similar to that he hal just given a day or two after the body was found. Thomas Dowdeswell, builder, Eketahuna, who also hail been previously called, said he went homo rn the night of the 11th February about 11.15 and went to bed. After he had been iu bed some time he heard, as hi thought, two people pass the door through Brecwell’s yard, in which his house was situated. Directly afterwards he heard them going back in the direction of the road. They were speaking, but he did nob know what they were saying. It would be hard to say whether the people were drunk or sober. By Mr Jellicoe ; He

went to bed at a quarter past 11, and he (should say it was about three-quarters of an hour or an hour afterwards that he heard the voices. They were only there a short time.

The witness Youngsen, recalled, informed His Honor that Dalton’s voice was soft, but not very clear. It was rather guttural, and not at all shrill. He should desoribe him as a low speaker, speaking from the throat. He had never heard him speak when excited.

Constable Roche, recalled at the request of Mr Jellicoe. said the knife found on deceased was rusty in both blades, and was rather more rusty now. Sinclair Munro George said in February last his father was living at Alfredton, and witness had chaige of some grass-cutting operations at Mangaone. He was in camp there with six men ; he andjour others lived in one tent, and Harrison and Smith occupied the other, whioh was about a ohaiu away. On the 11th February Smith and Harrison left the camp about 5 or G p.m. About 2 o’clock next morning Harrison came into the tent and spoke in a very hurried tone, as if excited, and then went out again. Soon after witness heard the sound of voices coming from the other tent. He should think Harrison must have started talking as soon as he got over to the other tent, but he could not catch any of the words. Ho recognised the voices of Smith and Harrison. Before witness went to sleep again Smith came into the tent and asked for a piece of bread, which Bistre gave to him, and Smith then left. The men had then been in his employ ten days and a half, for which he had paid or advanced them nothing whatever. Paul Bistre, who was in the same tent os the last witness, said he heard Smith and Harrison speaking when they returned at night. Harrison called Smith a big fool. He had seen the two men the same evening drinking in Eketahuna. Smith shouted, and palled out a 2s piece, a 6d piece, and a £d, and paid for the drinks out of it, saying that it was all the money he had. This concluded the evidence, and the Court then (4.40) adjourned till 10 o’c’ock next morning.

Thursday, June 16. (Before His Honor the Chief Justice.) The hearing of the charge against Charles Smith far the mnrder of John Daiton at KketahuDa was resumed this morning. SUMMING UP FOR THE CROWN. Mr Gully then summed up on beha’f of the Crown, and in doing so said it seemed probable that the defence would first put forward the theory that deceased diod by hiß own hand, or if net that there was not sufficient evidence to connect the accused with the crime. As to the first mentioned theory, there was no reason or motive given for his having killed himself; the place where he died was on a r>ad on which he had no earthly business, and at an early hour in the morning, besides which there were signs of a struggle entirely inconsistent with the theory of suicide. Then there were the facts that his pockets had been emptied, that there was no weapon in evidence wi’h which he could have killed himself, ai d there was not the slightest reason why he should have thrown the weapon away. But the most conclusive evidence against the theory of suicide was the position of the wounds, more particularly the one in the left side. Mr Gully then dismissed that portion of the suggested defence, and went on to state the oase of murder as against the accused Smith. The probability, he said, was that the first blow was struck upon a sudden impulse, either because the men were quarrelling, or because Smith was desirous of going through Dalton ; but there was nothing in the evidence to show that there waß any preconceived iatentlon of murder. The facts "as against Smith were :—Thpossession of money which he had been formerly without, and the finding of no money on Dalton, who had previously been in possession of a good deal; the faot that they were together before and when they left Elliston’s Hotel; that they were seen together later on in the night, quarrelling, in the township of Eketahuna ; that later on still they were on the Alfredton road, and were heard talking and shouting, which brought them to the point where the murder was committed. Another remarkable feature of the case was that no explanation was made by Smith when arrested and charged ; he said nothing whatever then or now, and he asked was it natural that a man suddenly told of the death of a man with whom he had been drinking should make no remark or exolama tion whatever? It was their function to draw a clear inference from the evidence before them, and he hoped they would do their duty, however serious it might prove to be. THE DEFENCE. Mr Jellicoe then addressed the jury for the defence. Having referred first to the solemnity of the duty cast upon them in determining as to the life or death of the prisoner, and upon him in protecting that life to the beat of his ability, he began, as he said, to disentangle the evidence upon which the Crown based the charge. He should first show the extreme improbability of the theory of murder set up by the Crown, and he-undertook upon the evidence to establish the complete innocence of the man who now stood at the Bar charged with tuis most serious offence. They must first consider whether death resulted from suicide or homicide. As to the position of the wounds, they must not always expect to find suicidal wounds >n the most mortal part of the body, as there were many causes which might misdirect the blow from the portion of the body aimed at, and in many cases of known suicide wounds had been found in most unusual portions of the body. Again, when persons were in a state of insanity—and he would suggest that Intoxication was a form of insanity —they often inflicted wounds In extraordinary parts of the body, and in many cases they inflicted more than one wound. If this was a case of suicide he had done that —he had first inflloted the wound in hie throat, which, according to Dr Beard, could have been self-inflicted, and would not of itself cause death, and then used the same knife to stab himself in the Bide. Mr Jellicoe showed

the coat worn by Dalton to the jury, placed it on his side as it would have boen worn by the deceased, held a knife iu his right band, aDd went through the action of stabbing himself. Then he placed the coat on a constable and pretending to stab him showed that the kDife would have entered the coat at a different angle. It was not for him, he continued, to satisfy them that this was a suicide ; it was for the Crown to satisfy them that it was a murder, and ho contended that what he had put before them was sufficient to cast doubts on the theory of the prosecution. The other marks on the face were of a nature which could have been caused by the broken glass which was lying about, so that, • supposing the wound in the side was selfinflicted, there was absolutely nothing against the theory of suicide. The wound in the side could have been inflicted by any ordinary pocket knife, and he suggested that the wound had been self-inflicted with a knife which they had not yet discovered. Dalton, according to the doctor’s evidence, was capable, a f ter the wounds had been inflicted, of walking a considerable distance, but he would have control of his senses, and would retain sufficient sense aud power to throw a knife a considerable distance. No Bearch had been made for suoh a knife ; and if the prosecution did not make such a search in the vicinity, whose duty was It to do so ? If a knife was found It would give the key to the whole situation. Then, again, if the deceased was as capable of motion after receiving 'the injuries as Dr Beard said he was, and was not content to lie down and die, how was it that he had not gone to one of the houses in hia vicinity? As for motive, there was as much motive for suicide as there was for suggesting that Smith murdered him. Dalton had left his billet, he had spent his money, he was drunk, or had been drinking, and rnanj people had suicided for such causes as those he had mentioned, while on the other hand the evidence as to there having been a straggle was by no means convincing. At 1 o’clock the Court adjourned for lunch. Resuming atJ2 p.m , Mr Jellicoe pointed out in lengthy detail the contradictory nature of the evidence given on behalf of the Crown, with regard to the movements of Harrison, Smith and Dalton, and at the time at which certain events happened. In one instance the witness Bone said he saw two men whispering in the passage of Elliston’s Hotel, who were Smith and Harrison, and that they afterwards went into the bar parlour, but according to other evidence Smith, Harrison and Dalton were already in the bar parlour when Bone entered, and it would therefore be a matter for their consideration as to who these two men could have been. According to the evidence again, these three men were in Elliston’a Hotel up to 12 o’clock, and if so, who were the two men that Johnson met on the road about a quarter to 12? Perhaps they were the two men Bone saw whispering in the passage of the Hotel. Mr Jellicoe referred in severe terms to the conduct of a landlord of a hotel in supplying drink to these three men when is a Btate of drunkenness, and then when be bad got almost their last sixpence turned them like dogs into the street, telling one of them when he asked for another drink to “go home and let deoent people sleep.” What value would they put upon the rash statements as te time of such a person in considering whether they would deprive a fellow creature of life ? Continuing, he reviewed the evidence at great length, chiefly insisting on the faot that the evidence (ailed to prove sufficiently conclusively that these three men were seen together, and contending that the discrepancies in the evidenoe were such as to prove that the accused Smith bad nothing to do with the erime—if crime it was. In the course of hia address Mr Jellicoe remarked that both be and Mr Coates had conducted the defence without hope of reward, and the Under-Secretary had written to say that when a barrister undertook to defend a prisoner without means he did so as an act of charit-. Mr dully said the Government provided the sum of £lO. Mr Jellicoe : And at the same time hav9 intimated that it is only iutended to cover out of pocket expenses. Mr Jellicoe concluded an address lasting more than four hours by saying that he trusted the jury would mete out not only justice but fair play to the prisoner, who had already undergone three trials, remembering that justice could not be vindicated by the aacrifioe of a victim, but by the condemnation of the guilty or the release of the innocent. SUMMING UP. His Honor then commenced to sum up the evidence. Previously, however, he caused Dr Beard to mark on Constable Roach’s coat the exaot spot where the injary was in Dalton’s left side, and told the constable to make as if he was about to stab himse’f in that place. This episode over, His Honor told the jury that if they vere satisfied that though Smith had no intention to cause death, he in the course of an assault did cause death, then their verdict must be murder and not manslaughter. To his mind there was no evi. dence on which they could find auy verdict other than murder or iunocenoe. Were they satisfied that Smith was the last person seen with Dalton, and that his object was robbery, then the only reasonable conelusion was that the murder was committed by him in the attempt to carry out the contemplated robbery. They could not ordinarily expect to prove offences of this kind other than by what was known by circumstantial evidence, so that they had first to see that the facts presented by the Crown were proved satisfactorily, and whether the only inference to be drawn from them wheD so proved was the guilt of the prisoner. If, however, seme other inference was opeu to them they must find the prisoner not guilty, if not, their duty was obvious. At 6.10 the Court adjourned for an hour. Resuming at 7-15, His Honor proceeded to review at some length the evidence which had been given, after which he dealt with Mr Jellicoe'e theory that the deceased committed suicide. They had to consider whether a man in a condition such as Dalton vyas in would Jkill himself in the way that

Dalton was killed, and also whether he wnnld be likely to stab himself in those particular parts of the body where the wounds were found. He had already pointed out their duty to them, and he would now (8.30 p.m.) ask them to consider their verdict. The jury then retired, aud returned at 9.45 with a verdict of “ Not guilty.” The announcement of the verdict was received with some applause in Court, which was immediately suppressed. The prisoner was then discharged. Mr Gully, Crown Prosecutor, then said that in the oase of the Queen v. Harrison the Crown wished to enter a nolle prosequi. Mr Coates, who was engaged for Harrison’s defence, said he would prefer to have a jury empanelled, and the prisoner formally acquitted. Mr Gully not objecting, this courae was taken, the same jury was empanelled, no evidence was offered by the Crown, and the prisoner was accordingly acquitted. The Court rose at 10 p.m. Tuesday, June 21. (Before Mr Justice Richmond.) LARCENY. Tasman Cook and John Brown were oharged with having stolen a gold watoh from the person of Samuel McCallum on the 13th May. Cook pleaded guilty and Brown not guilty. Mr Gully prosecuted and Mr Coates appeared for the defence. Mr S. Williams was foreman of the jury. The evidence was similar to that given in the lower Court, and was to the effect that the watch was stolen from McCallum while he was asleep in the commercial room at the Star Hotel, and that the prisoner had pawned it. The prisoner Cook gave evidence, and Btated that he had stolen the watch, and that Brown had nothing to do with the robbery. The jury after 15 minutes’ retirement returned a verdict of guilty. The prisoners were remanded for sentence until next morning. LARCENY. John Driscoll, with several aliases, pleaded not guilty to a charge of having, on the 10th March last,' stolen a silver watch and chain from the person of Joshua Herd. Mr Gully prosecuted, and the prisoner defended himself. Mr G. Wilson was foreman of the jury, The evidence for the prosecution was to the effect that the accused had accosted the prosecutor in Cuba street late on the night of the 9th and snatched his watch and chain from him, and then ran away. The prisoner, in hia address to the jury, declared that he was as “ innocent of the charge as the babe unborn.” The jury found a verdict of guilty, and His Honor deferred sentence until next morning. (PRESS ASSOCIATION.) Napier, June 21. The criminal sittings of the Supreme Court opened to-day before His Honor the Chief Justice. Joseph Roberts was convicted of stealing a watch and money from Thomas Baddeley at the Railway Hotel, Danevirke. and was sentenced to two years. Ann Erickson pleaded guilty to stealing articles from the Star Hotel, Napier, where she was servant. Hia Honor consented, under the circumstances urged in mitigation by Mr Dinwiddle (the prisoner’s counsel), to release the prisoner on her own recog. nisances to come up for judgment when called upon. Huru Kurukuru, a Native, was sentenced to fonr months for horsestealing. Rebecca Livingstone was acquitted on a charge of stealing £7 103 from Annie Woodhouse at Danevirke. Teo Mereti, a Native, pleaded guilty to forging a cheque for £l, and was sentenced to two months’ bard labour. CIVIL SESSION. Wednesday, June 15. (Before His Honor Mr Justice Richmond.) Oliver Lawson v. Isaac Hunt. —Claim, £2OO damages. The evidence having closed, Mr H. D. Bell was heard for the defendant, and Mr R. B. Williams for the plaintiff. His Honor gave judgment for plaintiff for £4 (in addition to the £1 poid into Court), with costs on the lowest soale. John Bateman Harcourt (land broker) v. James Lindsay Oliver (sheep farmer). — Claim, £233 8s 9d, commission on the sale of certain property at Moutoa, Wellington district, being at the rate of 2£ per cent on £9332. The plaintiff alleged that In Febru • ary last defendant instrnoted him to sell his sheep farm at Moutoa, and agreed to pay 2J per cent commission ; that he found purchasers for the property, viz , James Allen Strang and David Walker Strang, who paid defendant £9332; and that defendant refused to pay the claim for commission. The defence was that the property had been sold through the agency of Murray, Roberts and Co., who had been paid commission. Mr Travers appeared for the plaintiff, while defendant was represented by Mr Skerrett (instructed by Mr Hankins, of Palmerston North). After evidence had been taken His Honor gave judgment for defendant, with costs according to scale. Mackay v. Staples and Young.— Action to obtain release from a mortgage and bill of sale. Mr George Hutchison appeared for plaintiff, who is a hotelkeeper at Hunterville, and Mr Skerrett appeared for the defendants. After hearing evidenoe His Honor reserved judgment. The Court then adjourned. Mr Justice Richmond was engaged on Thursday in hearing an action brought by W.’J. C. Stokes, of Heathcote, near Christchurch, against Davenport and Son, of Wellington, to obtain an injunction restraining the latter frem manufacturing certain cup headed selfadjusting roofing nails requiring no washer, and very well adapted for fastening corrugated iron. Of these nails plaintiff claims to hold the sole 1 atent rights, and he alleges that Alfred ltobb and himself were the inventors of them. The defence was a general denial of plaintiff’s allegations. The invention was denied, and it was affirmed that certain plumbing firms in Auckland had been manufacturing similar nails before plaintiff applied for his letters patent, and that, moreover, Messrs Short and Pearce, of Dunedin, had applied for letters patent in respect of a similar nail 52 days prior to plaintiff’s application being filed. Finally, it was alleged that in the case of a

like action brought by plaintiff against Geo. McCaul, of Auckland, Mr Justice Conolly declared the letters patent granted the plaintiff to be void. Messrs Quick and Tripp appeared for the plaintiff, and Mr Skerrett for the defendants. At the close of the plaintiff’s case the further hearing was adjourned till next morning. It was resumed on Friday, the examination and cross-examination of Messrs Davenport (one of the defendants), J. E. Hayes (plumber) and Messrs Murdoch and Rose (builders) occupied the whole day.. The case was adjourned sine die. When it is resumed counsel will be heard on the law points involved. The Chief Justice on Saturday delivered judgment in the case of Silva v. Cimino and another, which was an appeal from Mr Kenny, R. M. The argument was taken some days ago, and reported in our columns. In delivering judgment His Honor said that he had arrived at the conclusion that the document given by Jess on his deathbed to the plaintiff was an assignment within the Property Law Consolidation Act, 1883, and that the fact that it was voluntary and not acted on before Je3s’ death made no difference, as the donor had done all that he could do to complete the gift, and the assistance of a Court of Equicy was not required to perfect it. His Honor reviewed the authorities cited in argument and dismissed the appeal, with L 7 7s costs. Messrs Skerrett and Bunny were counsel for appellant, and Mr Jellicoe for the resDondent.