THE CUMBERLAND-STREET TRAGEDY.

Oamaru Mail, Volume IV, Issue 1249, 19 April 1880, Page 2

THE CUMBERLAND-STREET TRAGEDY.

(Continued from supplement.) His Honor, in' summing" up, saia : The crime of which the prisoner is accused is one of such une?ample,4 atyocity, and has created sugU a profound sensation both here find throughout the Colony, that it believes me to caution you with more than ordinary impressiveness to endeavour to put aside from your minds all prejudications in the matter. You miist endeavor to obliterate from your minds everything that you have heard about this case and about the prisoner outside the Cquiit, Of sosrse you have read the accounts of tlje' pE'eyioji| investigations which liaye' appeared in the public prints, and probably you formed some opinion on the case before-you came into.that.box, but you must endeavor not to let that opinion influence you now. ai'p not here to register the decrees or imagine decrees ef p'ftblip based partly xjerhaps on substantial riiatfe, but in the Court measured doubtless as vague rumours. You have' simply to decide on the <;ase—oll the evidence that you. have heard within these to take care on the one haiid'tjiat you not led away by the atrocity of the crime a to yisit the consequences fftepe suspicion, qr oji. anything else but ■■ clear and satisfactory gsrir deme, On the. other hand, if yon should think that clear and satisfactory evidence exists, you must hot let any morbid apprehension of the consequences to the prisoner interfere with your, verdict. The evidence that has been adduced is what is known as circumstantial evidence. The Crown has laid before yotj a number of Invites yoa,'tp apogr a conclusion these that the only'rational way of accounting for the murder is that the prjsoner committed it. Before, however, 501} can convict the prisoner, you must be clearly satisfied that the circumstances of thp niM<ier and thp ppnfluct are jfp £ pnly epnsis'tlei# thebypfjthesfs that the 'prisoner, comnjitted the murder,' Kit also that they are ipepngistgijt Witlj any gther reasonable hypothesis.' Let us therefore cpnr sider first the circumstances under which the murder took place, and'then see what evidence there is to connect the prisoner with it. You have seen for yourselves, gentlemen, the place where this awful ] occurrence took pjace. It ig, as you are aware, situated not perhaps in t>he centre of the town, but still in a thickly-populated part of a tovra which conta'ns, with its suburbs, I suppose, some 40,000 inhabitants. ..The unfortunate victims; apparently lived on good terms. They had, so far as was known, no enemies. They were found one morning brutally murdered iji'thgir .beds, they and their infant child. The."weapon* wit"k ;which the murder was consummated was an axe. The" murdergr had apparently got in by the window 6f the sitting-room, and the marks of his.feet were on the window-sill, The back 40.0r was

found open. The axe, the implement with which the murder was "committed, was usually kept in a box in a shed behind' the house. The man [who was murdered was murdered apparently in . his sleep. The i woman was found by James Robb, and when he first appeared on the premises she was not quite dead, but lying on the floor of the bedroom. The medical testimony as to the way the woman met her death apparently points, to. thecircumstance, that .she was lifting up her head from the pillow when she got the blow. In that position she received .several others while on her pillow, and subsequently to that she" must either have got on to the floor or had been dragged on to the floor. There is no evidence of robbery or, of the intention of the murderer to rob, except the evidence of one of the detectives tbat the drawers had been rummaged. S .rail articles of jewellery were there and were not taken. The murderer, in order to extinguish the traces of his crime, had placed a candle under the bed, and the crime was discovered by the fire which had taken hold of the bed and the floor, and the smoke of which was seen by the Robbs. That statement shortly, gentlemen, comprises the material facts of the murder itself so far as they can be ascertained from observation. What evidence is there then to connect the prisoner with the transaction? It appears that about half-past 6 on the morning of the murder, the murder having apparently taken place some little time before—it is of course impossible to fix the time, except you assume that the fall which Haydon, a neighbor, had heard at four in the morning was occasioned by the murder, and that the light which he also saw in the sitting room was the light lighted by the murderer. I think that there is no other evidence —not even the evidence of the doctors-^-as to the probable time at which the murders took place. Assuming therefore that that be so, that this noise which Haydon heard was the noise occasioned by the woman falling, or in some way or other through the acts of the murderer, we have this : That the prisoner was seen at the Scotia Hotel, a distance, so far is shown by the plans, of, I think, a little over 500 yards from the scene of the murder. He was seen there at half past six o'clock, the murder probably having been committed somewhere about a couple of hours or two hours and a-half previously. Coming at that early hour, he had apparently been out all night, and his statements is that he was out all night; undoubtedly he was in the same part of the town at half-past six as where the murder was committed. All that so far points against the prisoner, gentlemen, is this : That, being out all night, presumably he had an opportunity of committing the offence, and I need hardly point out that that of itself, in a town like Dunedin — in a town of so large a population as Dunedin—has very little weight. Any opportunity he had of committing the crime was shared in, of course, by a great number of other people. Then he has the interview with Sarah Gillespie, which she has related. (His Honor here went over the evidence of the witness.) So that, according to the evidence of Sarah Gillespie, she noticed a peculiar manner in the prisoner at this time; but I shall caution you as to the evidence of this witness, and of the evidence of all the other witnesses who speak as to how the man looked and as to what he said, that that evidence must be taken with very consider-, able caution. People are very apt to be j misled in observations of the kind, and after all, because a man looks agitated at a particular time, it is rather a large deduction to make that he has been guilty of some fearful crime. As has been said by a learned writer on cirsumstantial evidence, "In the endeavor to discover truth, no evidence should be excluded; but a case must be scanty of evidence which demands that importance should be attached to circumstances so fallacious as the in question. If the evidence without them is sufficient, this species of evidence is unnecessary, and if not, then the inferences from language, conduct and behaviour seem not of sufficient weight to give any conclusive effect to the other proofs." You must not, therefore, attribute too much weight as to how the man looked or to the precise words he said, though of eourre you should consider the evidence and give it what weight you consider on the whole as reasonable. Then the next witness who saw the prisoner shortly after is Wadsworth, the milkman. (His Honor here quoted from the evidence.) Wads worth's evidence is to the effect that the prisoner wenttowards Cumberland-street, that he looked down for a minute there, that he ( 'V adsworth) was watching him the whole time, and that the only direction in which he saw him looking was towards the direction where the fire originated. This circumstance is relied upon by the Crown as showing the anxie'y"of the prisoner to know '—assuming that he committed the crime—why the fire had not burned—to know whether or 110 the fire had burst out, and so the traces of his guilt concealed. The prisoner explains it this way. He says he went to Leighton's for the purpose of buying the salmon. He says, as I understand him, that he knocked at Leighton's dooi>, that he did not get an answer, tha{< he wejit up the street to "the corner,' looked for another store, and turning round saw Leighton at the door, and then went back, _ Wadsworth, however, appears to be positive, as he was watching him all the time, that he only looked in one direction—down Cumberlandstreet, to the left, where Dewar's house was. Then Leighton speaks as to there being a knocking at the private door and he was not up. (His Honor referred to the witness' pyideneo.) There ig no question the nian served with the salmon was the prisoner. I understood that the prisoner admitted the fact himself, aud this time he had on a topcoat and a white muffler, which he had got from the Scotia Hotel. The next account we have of him is at Blueskin, and then we have tlie evidence of Donnp. (His Honor went over Donne's evidence.) The remarks I made in commenting upon Miss Gillespie's evidence applies to this evidence also. Then we have the evidence of the arresting constables and of Inspector Mallard, aud the prisoner, jn his address to the Jiiry, made a remark pn the value of the evidence given bya : : ' pfiliceniah. ' Welt, yqu distinctly understand me, gentlemen, that though I do not wish tp apply it particularly to the present cape, I may say the romark that the prisoner made is one which is found in' all the legal text-books.' " That all men are guilty until they are proved to be innocent" is naturally the creed of the police, but it is not a creed which finds sanction in a Court of justice. In iaking the evidence of the constables into consideration, yov( flflugt take that info consideration. It is qnly fair you should be told" that, though I do riot wish by any means to press it in thg present oase, Constable Townsgnd gays i—(The constable's evidence was here read.) It does not appear in evidence whether the constables were in uniform or not, but it is certainly clear thaj; tlie prisoner was very anxious to avoid them, Jn sayjpg fjfyat Jl'e qanje from Waikouaiti, tlie -prisoner made a statement to the constable, and ■ whatever his' ; motive, it is perfectly clear that he was anxious tc> out of Dunedin from tfie 'fifutcjies) of 'tlie police. "sfou have seeji tne thing' was Similar to" a mask. [The prjsops'r "has' explained to yqu what it according t,o l;is I cjo not tliinfc It yepyMaterial, but }t oer.tsfn}y seems to. be as unlike a mask as anything can possibly be. Then it appears that the soles were off the prisoner's boots when arrested, and that the nails were sticking out of the sides. Then Constable Colborne, who was on horseback,-speaks to the arrest in very much in thesame terms as To\ynsegd. (His cpnstablei) 'Th'eti Inspector Mallard is called. (His Honor w§nt over t]}ig witness' evidenge,) Then there eyidenae wjiich, perhaps, I should have logically taken before—the evidence of Detective Bain as to the conduct and behaviour of prisoner before the crime ; but I will take it now, as we can deal TFith tl}e eyidppe of t}je pylice officers altogether.' (Dgteptiye Bail's evidence was here reac}.) That, gentlemen, is the evidence of the (statements njacle by tfee prisoner to Inspector Mallard before the occuiv rence, and the evidence of what took plaoe between himself and Bain before the occurrence. Of course, the statements that the prisoner is alleged to have made beforehand are introduced by the Crown to show that the prisoner had a crimg of tliis ldi}d in bis contemplation, and tljat he professed a "kind" of general enmity to the human race. •It ik for you. to say, taking into consideration the cautions I have already given you, if the crime is connected.with the prisoner; how far statements of this kind Vfill go to establish the prisoner's gnil|>; ~if you'flndf tljat tfye prisoner is npt" connected with the, crims," how far they supply an intelligible , motive for the prisoner' to commit it. The evidence of the constables T<?wnsend aud Colborue and Inspector

Mallard aa to, what took place at the time of the arrest at Waikouaiti, show that the prisoner was for some reason or other anxious to escape from the clutches of the police, and apparently when he waa charged with the murder he displayed very considerable agitation. To that circumstance you can "give what weight you consider reasonable ; but you should bear in mind tho cautions I have already given you on this subject. What would be tho effect on any man who is seriously charged with murder it is impossible to say, however innocent the man might be. How a man would look, the exact expressions he would use under such circumstances,, would depend upon his temperament, perhaps, partly on his physical condition. Then it appears that the salmon tins were found in the Botanical Gardens, and the clothes were found by Youngman on the Town Belt. The lad Hutchinson found tlie s;ilmou tins, and says—(Evidence read.) It is suggested that he (prisoner) went up to the seat to see whether the flames broke out of the house. Youngman says :—(Evidence read.) That, gentlemen, apart from the evidence relating to the blood spots, into which I will go afterwards, is the evidence relied on to connect the prisoner with the transaction, and the prisoner explains his conduct in this way. He says, as I understand—l do not know whether he admitted he committed it—at all events, he knew he was suspected of having committed another crime, that he was afraid of being arrested for that crime, and that was his reason whv 011 the Saturday evening he avoided Bain, and displayed the signs of fear that Bain spoke of. He says as an account for his being out that night that he took too much to drink; that he went to an empty brick building ; that he waited there till morning ; that then he determined to get away, for fear of being arrested; that he went down to the Scotia, got the salmon, changed his clothe', and went away to Blueskin and Waikouaiti. That is the explanation the prisoner give', and it is for you to say whether tint explanation is consistent w.th the other evidence And now 1 will go into the evidence e'ating to the spo's of blood, and as to this it is evidence of crucial imp ;rtance to tho case, as I think shall appear from those considerations. Putting aside thnt evidence, supposing every statement made by tho witnesses called on behalf of the Crown is to be accepted in its fullest weight against the prisoner, and supposing no explanationno reasonable explanation—of the prisoner's acts were given, still it would be impossible to say (apart, of course, from tlie blood spots) that he shou'd be convicted of this crime. The evidence, apart from the blood spots, mind you, and taking it in the strongest way against the prisoner, simply is this A murder of a diabolical description has been committed in a town of considerable population—some 30,000 or souls, including suburbs. The prison r was out at night at the time the crime was committed. He had therefore an opportunity of committing it, probably, but in a place like Dunedin of course that opportunity waa not an exclusive opportunity. It could have been shared in by others. There must have been other people who had an equal opportunity. Then he does and says a number of things that are excessively suspicious, and would justly cause suspicion to alight npon him, but there is this missing link ? there is nothi g to show that he is directly oonneefced with the offence. It behoves, therefore, the Crown to supply something which will fix; tho prisoner- a.s having been there—either in such a ease foo*marks _ on tho premies which correspond with the footmarks of the pri oner; some articles on the premises which can be identified as having belonged to the prisoner ; that the prisoner is shown to have had something in his p ssession which came from the premises J or that the prisoner- had same knowledge of the murdered people, or some special opportunity to commit the crime-some-thing. There is a link wanting, and the link that the Crown supplies is this. Thq Crown says the blood upon the clothe sup-i plies the link, that that blftod hqing "P ol * the clothes, taken in combination with the oilier circumstances, show that the p-isoner, and nobody else must have been the man. Consequently, gentlemen, you will have to consider this—and you would have to be fully satisfied of it—that the blood on tho clothes that were found corresponded with the bloodmarks which, in all human pro. bability would be found upon the person who committed the murder. If that is not established, it seems to me that the case fails. Apart from bloodmarks, it would be hopeless to say that there was anything but suspicion against the prisoner. If you are satisfied that the only way by which came on. the clothes—the pnly explanation ig that they correspond with the marks which would have appeared on the clothes of the murderer—if you are satisfied of that, I say—and if you think that there is nothing inconsistent in tl\e oUh cumstances, and that that a,ffQrdt) the amy explanation of the ii} wliiph the crime could be coimriittecl—then it would be your duty tp find the prisoner guilty, If, how ever, you tlrnk there is nqt sufficient ev-i--dence the bloodmarks that weye found on the prisoner's clothes corresponded with those which would naturally and reasonably be found m the clothes of the person who committed the murder, then you could, I apprehend, hardly find that the prisoner was the person who committed it. Now. tho evidence as to the blood is thftt of tho medical men j anc|_ I wquld call your careful attention tp the evidenoe that those gentlemen gave. (His Honor went through tho medical testimony.) The evidence about the blood on the door is very important, That, gentlemen, is the evidence of the medical men, and a& t\\e casp of evidence given by the pp.liccmen a similar caution jq necessary when you have to consider the testimony of experts. In the text books it is said that the evidence of experts is tho most untrustworthy of all evidence, but there is no need to go so far as thatcan be no doubt that whQVP iftedica} men or experts and when they see with their eyes, the qiyect inference they draw from whqt'they see is in most cases highly trustworthy, However, when they go beyond mere scientific observation and proceed to draw their inferences, then a caution beoomes necessary, and if an expert has formed a particular theory of how a certain occurrence happened, the chances are, unless the man is very strong-min<\e(\ indeed, that lie will look at the fi\qts through the spectacles of his theory. We know that people dq that in other things* science—in pphtics, ajud bq foyth, I have given' you' the detftijs of th§ tion without going through the evidence verbatim. I have given the evidonoe wlrch is supposed to oonneot the prisoner with the transaction; I have gone through, think, every word. Now, then, of the Crown I hay? tp.ken my \ from the BrqseQntbir's address. J. will' <sa|f yotiy to it; and it is for you io say' now how far it is supported. First,, that the prisoner was away fronA W.S sleeping.place on tlip night'the TOWfleyTO comiflittoc(. I have already o;ft that. Sep'oncT, he >ya§ seep" in hood of the crime tH§ time at which it may have Wli auppeaed tQ have been committed- Thirdly, that he was attracted to the house by the fact that it was standing back from the road, and therefore he was not liable to be disturbed, as no other house was flush with the road, Be-, fore he committed the crime robbery was his object" I suppose that probably is a conclusion. Fourth, he entered thelious'e for ro.bber.y, only to muydw if interfered with ; and this infqysno§ hasefl on the e(rcytn§tance that betook no weapon with him to commit the crime. But we have in evidence that the prisoner had in all probability a revolver on his person, so that that hardly applies. Then having entered the house through the window, fie passed through the back d<>QJ>> ejpenfjd it, tffid into the yard. Thepq Tie fftnridi an-' age, and examined 'the house and searched fop plunder. Whilst in the act, Mrs. Dewav awqke, The murderer then, to avoid tho risk of deteotion, struck Dewar before ho awoke, and then struck his wife also. Hq continued to rifle the drawers, found nothing worth taking, and before leaving piftood alight under the bed for the purpose of settiug fire to it. Sixthly, the fire not breaking out tho prisoner set about to escape detection, and changed his clothes, He left on the Sunday, but lie had no prior intention of leaving, having made an appointment with Baiiu Then the reason fop entering a house of this kind waato get lponey, not to take jewellery, &c, , he would be likely to find money, aa tlie pooupant being a man would probably have liis wages, it being Saturday night. It is for you to say, gentlemen, how far you think that the theory of the Crown is supported by the evidence. And not only qpt yw fieri tiwli tiw actejtf the prisguer

in connection with the murder arc ccmsis tent with Ms guilt, bat yoa moat also fin< before you con convict him, that the mnnlc is incapable of being explained by any othe reasonable hypothesis other than that thi prisoner committed it. The prisoner, a: yon have heard, denies the offence. H< states reasons -why he was away, why h< was out that night, and for his subaeqnenl anapicions acts, as I have already said, apart frutn the blood on the clothes. Taking thi rest of the evidence as strongly as it can be taken on behalf of the Crown, there » a missing link, and it is for yon to whether the evidence as to the bloou being on the clothes satisfactorily a«pph«® 3 missing link. 1 do not know whether I need go into the discussion commenced by the prisoner as to the possibility of any particular spots of bt«o<i being tortnd on any particular place. \ou have heard the evidence: yon saw what the prisoner dtd: you will be able ta jaclgcforyouraelvea If, however, you shonlct think that some of the blood found upon the prisoner is in-apable of beisg exp'ained by the theory that he was the person who committed the mnrder—some of the blood that was spoken of as having been impelled upon him—you wottld reasonably doubt whether the other blood upon him had arisen from that cause. The prisoner, yon will observe, has given an explanation of bow the blood came upon him. If a person having blood npon him n ruler suspicions circumstances gives an explanation which is manifestly untrue, then of course it tends very much tostrengthen any presumption that may be against him by reaaon of the blood being upon his person ; but it is for you to say whether, considering the almoat invisible nature of the bloodstains, a person is reasonably called upon to give and explanation of how they came there. The question of the blood-stains is the most important part of the case. You have to aatisfyyourselvesbeyond all reasonable doubt that the stains which came upon the clothes can be accounted for in no other reasonable way than that the clothes were worn by the person who committed the mnrder. I do not know, gentlemen, that I need trouble you any further. I will simplv repeat the caution that I gave you already, that the case is not to be decided by what yon have heard before, not from any views previously held by you, but from the evidence that has boen adduced before yu. If yoa think that there is no other inte ! ligib!e way of exp aining the mnrder than that the | risoner committed it, then it would be a dutyaltogether irrespective of consequences to find htm guilty. If, however, you think that either the evidence does not estabtish that, an 1 fnrther that the evidence does not sufficiently conuect the prisoner with the murder, or that there are other reasonable ways for accounting for the murder, then, however unsatisfactory it may be to leave a crime of such an atrocions nature undiscovered and unpunished, it will be your duty to acquit him. Yoa will be kind enough, gentlemen, to consider yoar verdict. the Jury retired at 6 o'clock, and returned into Court a few minutes after 9 with a verdict of "Not guilty." His Honor to the Crown Prosecutor): There are other charges against the prisoner. Perhaps they will be proceeded with on Monday. Mr. Haggitt: Yea, yonr Honor. Will your Honor proceed with them on Monday 1 They are heavy. His Honor : I suppose, Monday being the first working day, they wonld probably be proceeded with. What day will suit yon t Mr. Haggitt: I understand there is a criminal case fixed for next Wednesday, and I would suggest to your Honor that, as it is rather hard work, you might leave these until the following Monday. His Honor (to the Jnry): Then I have to thank you, gentlemen, for yonr attendance and the attention you have given this case. Yon are now discharged. The Court adjourned till Wednesday, the Slat inat., at 10 o'clock.