NINTH DAY.

Otago Daily Times, Issue 159, 20 May 1862, Page 6

NINTH DAY.

Moxday, May 19th, ISG2. Before His Honor Judge Gresson. HIGHWAY IIOBBEKV. Jolin Davis and' John ltussell, alias Sprattey, were indicted with having, on the Bth March last, committed a felonious assault upon the person of oiie William Lindsay, and after putting him in bodily fear, forcibly robbed him of £2.7 and other moneys. To this indictment the prisoners pleaded not guilty, and were undefended. The following jury were empaniielled : — David Adnms (foreman), William , Alexander, Thomas Ayres, John Anderson, Frederick John Harriott, David Andrews, David Anderson, John Allen, William Andrews, Thomas Fergusson Allen, Thomas Brabnnc, and George Uollyns. J3oth prisoners made application to the Court for the persons of Arthur Syinonds and John Thompson, now in caol, to be brought up by habeas corpus. His Honor observed that were the application made in the usual manner, by affidavit, he would - grant the request; upon which the prisoners, and Davis in particular, renewed the application with much vehemence. Mr. Howorth, Provincial Solicitor and Crown Prosecutor, now waived the etiquette of his official position, by applying to the Court in behalf of the prisoners for a writ of habeas corpus to bring up the bodies of Symonds and Thompson, when the Judge made an order accordingly that they should be brought into ' Court about the hour during the day •when their attendance might be required. The trial then proceeded, Mr. Howorth acting as Crown Prosecutor. Having stated the case, the learned gentleman called. William Lindsay, who, being duly sworn, deposed as follows :—I am an engine-driver by calling. I remember beinir at Wetherstonc's on Saturday, the Bth March. . I went to bed about eight o'clock in the evening/ at Alexander',? restaurant tent, and alyutll o'clock-something awoke me. Feeling very dry, I got. up to go outside to get a drink from a bucket of water which I had seen at the door. When I got out&ide both the prisoners approached from a corner of the tent. I had seen both of them before the same afternoon, at the premises of a man named Kitchens, and situated on the same flat as Alexander's store. They ■were both in company. When the prisoners came up,

ltussrll asked mo what I was looking for, and I said that I was searching for some water. Kusscll then said, " Uome along with me two or thrue yaivls, and I will show you a gool stream of running water.'' 1 went with them, and when we reached the water the prisoner D.ivis dropped behind me, an-1 soizad mo b\ the nock and arms, while Russell searched my pucket?, which ho tore <>ft. Hebtruek mo on tli<j bn-.ist. at the same time, with something muchhaid r than a man s fist. In my left hand pocket was a purse containing 27 sovereigns, and in the other I had from los. to lbs. When I was seized I made as great a noise as I could, and Air. Alexander came up and aikeil mo what they had b.'en doing to me, addressinu the prisoners at the same time, by saying to them, •• What arc you rascals up to {■" After the prisoners had taken my money, they threw me do.vn with much violence. Russell then said to the other prisoner, .'• Jack, have you got if!" and Davis replied, '■ Yes. ' As soon us tho prisoners left, they crossed the creek by a bridge, anJ. ■is they did so, I observe I a hat to full from one ot uicm. ".Then thoy had rfached a distance of about fifty yards, thoy both stood still.turned round, and one of them fired a pistol, while one exclaimed, " If you follow me I'll give you the contents of this, or that.' The prosecutor gave his account of the transaction in a very disconnected and incoherent manner, which extorted from hi 3 Honor the observation; that the witness gave his evidence iv a very unsatisfactory way. The prisoner Russell tooknotes assiduously, during; the examination of the witness iv chief, and _on flic conclusion of the Crown .prosecutor's questioning, nut him through a course of cross-examination at considerable length. Much of the evidence which he elicited, was iuimaterial. Perhaps the most critical portion of it related to the time when witness went to the lock-up at Gabriel's Gully, on Tuesday, 11th March, to identify the men who had robbed him. Tlie'witness stated on oath in cross-examination, that six or eight men were brought out and placed in the form of a half circle, for him to look at. \V lieu police-sergeant Urackcn instructed witness to point out the men, he did not recognise Russell in tho fiist instance, but o:dy picked out Davis. After he went out, witness expressed a desire to have another look at the men, as sonic of them had not been properly dressed on the former occasion—one of them in particular having a blanket thrown over his shoulder. This was Russell WjVm Spratty, who was made to put on propei clothes, and then brought in again, when the prosecutor identified him as neing the man who had seized him round tho neck on the night of the robbery. Thomas Alexander, of Wethcrakme's Gully, storekeeper, wns next examined. He corroborated all the material features of the prosecutor's evidence, and stated in reply to questions put by Mr. Datnpier,.that the prosecutor Lindsay called at his store on tho Sth Maruli,- that he went to bed at an early.hour, and rose about eleven o'clock, when he got up, and went ' outside. Lindsay "went out of the tent to a distance of about thirty or forty yards, aud was returning when two strangers accosted him and bade him good night. He then accompanied the men to a fchort distance from thu tent, and in the course of a few minutes witness heard an unusual noise, which induced him to proceed to the locality. He then found the prosecutor on the ground, almost in a state of insensibility, and noticed the prisoners at the bar decamping from the spot. He challenged them as to what they had done, and he heard pistol shots fired. As one of the men made off, he dropped the hat produced ns he crossed the creek. It was picked up the following morning. c At a quarter before two o'clock, the court adjourned for a quarter of an hour. Upon resuming— Sergeant Major Bracken*wos put into the witness box, and having been duly sworn, deposed: that on Sunday morning. 9th March, the prosecutor reported to him that he had been "s*uckup"at Wetherstone's by two men. He immediately went to Alexander's st'jrS, near to the place where the robbery hud been committed, and made all inquiries there. He then, in company with detective Trimbill, went to the prisoners' tent, -which was situated in the lower part of the gully, when be observed thu two prisoners coming out, aud afterwards take the direction of VVethcrstone's Uully, away from him. Witness challenged the prisoner Russell to stand, which the man refused to do, but ran onwards pretty fast. Witness then rushed forward, and arrested him, and brought him back to -the tent, where was detective Johnston in charge of another prisoner of the name of Sullivan. When Russell was brought in, a light took place between Russell, alias Spratty, and Sullivan, with witness and detective Johnston : during which the prisoner Davis ran oil towards Waitahuna. Witness pursued and captured him, and on searching; his person, found a one pound note, 18s. (id. iv silver, a silvar watch, and a chnin, besides a knife. He produced the hat which he obtained from Alexander, the storekeeper, who had picked it up on the morning succeeding the robbery. Witness had seen the prisoner Russell wearing a hat precisely similar to it. Detective James Rowley recognised the prisoner Russell, and identified the hat1 produced. Detective Johnston proved a searching examination of the prisoners'tent, where he found three doublebarrelled pistols, one of which was loaded in both barrels; two of thorn were loaded only in one barrel, and there was a single-barrel pistol not loaded. This closwl the case for the Crown, and the prisoners proceeded to call evidence to prove an nlibi. Arthur Simonds, a prisoner now awaiting his trial for an assault with intent to commit an unnatural crime, was the first witness called by the defendant Russell. George Thompson, another prisoner in gaol for felony, was the next. Both these men stated, that they remembered having been; in the . lock-up at. Gabriel's Gully, the former on the nights of the Bth, 9th, 10th, and 11th March ; the last named wituc^s on the 11th idem. Thoy stated, that when Lindsay entered the watchhouse, he only picked out Davis in the first instance, although Russell was then present, and it was not until his second inspection that he identified Russell in person, as being1 one of the parlies, concerned in tho robbary under arms on the night of the Sth March last, at Wotherhlone's. The prisoner John Russell, alms Spratty, now addressed the jury. He possessed papers'to which he constantly referred as though containing notes and data, whurefrom to guide him in his remarks. lie assorted that the most malicious and unfounded calumnies had been industriously circulated to his disparagement by the police force since his incarceration ; he contended that his character had been wantonly and grossly vilified, and if the minds of the jury had not been prejudiced through the medium of tho public press,' he felt conyiuccd, that. their verdict would be in his favor. He then criticised the various phases of the evidence, analysing minutely and with remarkable judgment the more salient points; he expressed him self very thankful for the fair play which had been extended to him on his trial, bo the consequences what they may. He alluded to what ho stigmatised '.' the mock identification of tho witnesses of the Crown," and implored the gentlemen of the jury, in the course of a somewhat intelligent address, to dispel all prejudice from, their consciences, and to restore him again to liberty by a verdict of acquittal, instead of consigning him by a verdict of conviction, to the felon's cell for an uncertain number of future years. John Davis, the other prisoner, was very brief in his observations. . He merely alluded tp" the, arrest of Sullivan and Russell, and fearing, as-he said, that be might be subjected to similar treatment at the hands of the constabulary, he ran away.,a distance of some_ three or four miles before he was captured. His Honor next summed up, with extraordinary care, and recapitulated the whole of the evidence witFi minuteness; commenting on tho several features of it, and analysing the entire testimony wjth great patience and particularity. At ten minutes past five tho jury retired to deliberate, re-entering the, Court in five minutes with a verdict of Guilty against both prisoners. In reply to the inquiry as to their respective ages, Davis said he was 45, and Russell said he was 41. His Honor, in addressing the prisoners, said, that after a very patient hearing, they had been convicted of a violent and aggravated robbery. Had the pistol ball'taken effect on cither the prosecutor Reynold*, or ' the witness-Alexander, they might have been I standing to dayo'u-a trial which would have probably sacrificed their-liyts. His Honor was resolved that i crimes, like these should not go unpunished ; for they were crimes not to be tolerated in any civilised country. -The prisoners would find, and their accomplices also on the gold fields would find, that offences of this nature would not be overlooked, but that they wi«uld find the law was too strong for them. Sentence: —Each prisoner to be kept three years in imprisonment with, bard lubor, computed from the 11th March last.