SUPREME COURT.

Otago Daily Times, Issue 11049, 1 March 1898, Page 3

SUPREME COURT.

IN CHAMBERS. Monday, February 28.

(Before his Honor Mr Justice Denniston.) BE DONALD* CAMPBELL, THE YOUNGER (DECEASED). Motion for letters of administration (Mr D. Stewart). —Accordingly ■ * RE HUGH KEITH (DECEASED), INTESTATE. Motion for letters of administration (Mr W. 0. MacGregor).—Order accordingly.

RE SAMUEL THOMPSON KERR (DECBASED). Motion for probate (Mr Gallaway). — Order accordingly.

CRIMINAL SESSIONS. (Before his Honor Mr Justice Denniston.)

His Honor took his seat on the bench tit 10.30 a.m.

.THE GRAND JURY. The following gentlemen were empanelled and sworn in as the grand jury :—G. L. Dennistou (foreman), W. Barren, G. Blyth, J. Brown, J. Cable, J. Carroll, A. G. Fenwick, F. Freeman, H. Green, J. Hopkins, W. Livingstone, J. M'Gill, L. Mendejsobn, P. C. Neill, W.-G.Neill, J. Oughton, W. Scott, H. E. Shacklock, J. B. Thomson. A. Todd, J.Wright, J. C. Thomson.

HIS HONOR'S CHARGE. ' ' ■ His Honor, in charging the grand jury, said: Mr Foreman and Gentlemen of the Grand Jury — On this occasion the calender is, I understand, unusually lengthy, for. this district, and there are several cases of a serious character. I do not think, however, that there are very many cases taat need give you any great trouble. Most of you, I know, have acted as grand jurors on other occasions, and I shall simply refer shortly to the substance of BUch cases as I think call for any special observations. There is a case of a very serious nature, a charge of murder, against a man named Charles Clements, but, although the case is most serious, it presents no difficulties to you. There is a clear prima facie case that the accused person did do the act which led to the death of the woman. That being so, any possible defence which may be suggested must be adduced by the 'accused to the petty jury. There is a charge of robbery from a warehouse — the robbery of tobacco. That is a case in which there is a question as to identity— the identity of the accused and the identity of the goodß. stolen. However. I have read through the depositions, and I think that to commercial men these facts will present no difficulty, so far as you have to investigate them here. There is a charge against a man named William Jofcn Cole, of cutting and grounding. In that case there seems to be some little' discrepancy—some question as to what weapon Was employed ; but as it seems clear that, whatever the weapon was, there is prima fade evidence against the person accused that' the wound was inflicted by him, there will ba do difficulty there. There are a large number of charges against.a, pc-son named William Simpson of having forged cheques. 1 cannot but express regret that every cheque which prima facie the man issued should have been brought before the magistrates in the first instance, the only result being, so far as I can gee, that a large number of gentlemen at Lawrence have a trip to town at the expense of their country. Ido not think you will haveany difficulty-its that caae. There is a peculiar charge in which parsons named M'Callion' and M'Guire are charged with assault with intent to rob. The .whole of the evidence, with the exception of the two men having been seen by other persons, turns upon the evidence of one • individual, who admits having had seven " long,beers " in the course of the afternoon, and in response to a suggestion he admitted that he might have had several more. The case against the accused is that they stuck the prosecutor up and asked him for money, and on his declining to give them any they got him in a corner and put their hands in his pocket 9. It is for you to say whether, looking at the encumstances of the case, you think it probable that a jury could convict on the evidence. There is a charge against one bamuel Msrcer whioh, I think, calls for consideration on yourparfc. He iscliarged-at the moment I im not quite sure of the exact charge, but the gravamen of the case against him is having dis-

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charged a pistol at one Edward Brown-a loaded pistol—with intent to injure. In order to convict there must be evidence of the use of the weapon in the m»nner charged. As I have said, the circumstances are peculiar. Probably you are familiar with them. The accused person appears to have been at the races, and circumstances that it .is not necessary U trouble you with seem to have led to a row there with the prosecutor, ?T*J?' -4. 1S suSSeated that the accused (Mercer) had the sister of this man Brown with him, and had Removed her from the custody of her family and had her in his house. There seems to have been a row at the time, and subsequently the prosecutor, (Brown) seems to have gone, to T er KtrA, t°Tv», The- re aPPearßto he very little doubt that at the time Brown was under the ! influence of liquor, and it seems that he took with i u?'\ way °f Persuasion I preaume, a number of . large stones in his pocket. He alleges that hs intention in goim; to the house was to obtain possession of his sister. There is, however evidence that when there there was a row. What- | ever his object was, it is quite clear that he had ; no. right to go there. Whatever may have Been his moral rights to go and interfere with his , doubt that he had no legal right whatever to go Ito the,, houae wader these circumstances. If he S' th°™ honestly for the purpose of getting his sister that might be an answer in any charge j against him, m tigating any charge against S the legal right of Mercer to the undisturbed possession of his own house. The phrase that a man's house is his castle is not a mere phrase; it is an i axiom-of English law, and there is no doubt ,that a man is entitled to resent any invasion of his house by a drunken'man who apparently- ! intended to injure him, as in the present : case, and to resent it effectively and with | whateysr reasonable force is necessary to ■ .■eject the person who enters. I won't trouble you ! with the details. There appears to have been a good deal of rowing and ultimately this man was ejected, with an iiijury of some kind to his head- ?,?*■* serlona injury, but an injury of some kind Ihe important point is that nt o\ie stage of the proceedings the accused (Mercer) obtained a revolver, and fired it. To me it appears that if you j. think there is a primtt, facie case that the pistol was ! vised by the accused with any intent to injure or j was fired with any intent to injure the prosecutor I you ought to send the case to the petty jury for of course, whatever provocation there was in the invasion of a man's premises, it would not justify the use of a weapon of that sort. I may say hi passing that it seems pretty cleat that no Svound •was inflicted by any bullet-that the man was not shot is clear What seevns to be suggested is that he got knocked on the head with the butt of the ! pistol. . I think if what happened was that thera > was a row, and during the struggle the man got knocked on the head with such a weapon, it Woiild i be difficult to conclude that the accused was doing I more than he was justified in doing in turning a I j man of this sort off of his premises. If, oh the I i other hand, you think that the pistol was ' used., with actual intent to injure the man I I + *L d's=harge, you should send: the case to the petty jury, because, as I have said, S whatever may have been the provocation j it would certainly not amount to any justification iof the use m that way of the weapon On the |. other hand, it seems to me, if you are satisfied it lis clear m your minds that there is no reasonable I Krouud for suggestint? that any petty jury could .come to the conclusion that the ."weapon was. used with .the intention" of injuring 1 i 6i ma?: tl t, He?. y°« would :.he, I think; i- y T ePv tltlecl t0 B>iy that nothing was done which Jhe exigencies of the case: would not, under the circumstances, justify. There is another casein, which a woman named Dorothy King is I charged with having stolen £22; in, gold from the person of Honor* Barry. In that case the prosecutnx declares that she took, with her: to the theatre on the night of the robbery, £22 in gold, wrapped up in a rag and secreted in herpocket, which occupied the us.ua! position behind her! bhe seems to have forced her way into the theatre , and probably to the annoyance of some person | near her, and created somewhat of r- scene' : Th» | prosßcutrix, says that she felt; some.person ! tumbling about her pocket, arid that on her return | home, not the same night, but the next raornin?, she found the gold had been removed. Of course las to the question whether she had such gold I there is only her own evidence,1 because she says I the whole thing was a secret from her family. |-. N° Person knew of the existence of this sold which she brought to the theatre with her. *°c evidence against the accused of having stolen the gold; supposing it to have been there, is the j evidence of a woman, who says she saw her take out a safety-pin that was in the pocket; aiid immediately afterwards saw a rag in the hand of,the i accused, which she said stank. There is similar evidence by another woman who was sitting bee!de_her. .The gold has not been traced, and : it is * difficult thing to understand how, if it was done m this open way and paraded about, the gold itself, apart from the rag, passed without notice from the, possession of the prosecutrix to the possession of the accused. Of course, as you are aware, gentlemen, your business is not. in a case ot this sort,.or in any case, to decide'whether you yourselves would convict. That is the duty of ™»c prtty jury. It is your duty in all these cases to decide whether in your opinion1 there is any reasonable possibility of the common jury convicting, on the evidence. That is the standard you have to apply to the cases. It ib for you to say whether, under all these circunisiances, there is any case m which the petty jury could see their' way.,to,a ; conviction, however stupid the action may have been ; and the absenca of any evidence, except one. person, as to the existence of the ;^qld, is. a .proper subject,! .believe, for your consideration. There is a charge against a Chinaman which presents no .difficulties. That, gentlemen, is all I propone to say ph. the subject of the several bills which will come before y<hi On thl?.. os.pasioD, however, which is the putting in motion of the machinery for'administering the criminal law. of the colony, it seems fitting that I ■ should refer to the joss which,,since the last'meet--ing olthe grand: jury of this district, such administration has suffered in the death of the late Crawn prosecutor, Mr B. .0. Haggitt. Pew men havelad better, opportunities than I of observing".'the manner in which Mr Haggitt discharged the important -and onerous duty which he for: many years carried out in this court.' It was, I feel ■justified in saying, difficult to imagine_ these duties . more •.carefully, more conscientiously, or more thoroughly performed, or .a. more complete, combination of a strenuous enforcement of justice and of a strict avoidance of any undue straining such considerations against the accused to secure a conviction. ;These charac-' tenstics, and others which are outside my present province, have been already fully and generously acknowledged by the usualorgans of public opinion, But, as I have said, I feel that it is fitting that f should .express here wHat I Know to be the feeling of the learned judge who, in the ordinary course, would have presented to-day my own reelings and, I am sur«, the feelings of those among ypu, of whom there mustbe many, who have had the opportunity of knowing the ."late-' Orown prosecutor in the discharge of his duties in this place. _ That, gentlemen, ig all' liave to say- .« you will retire to your ■ room the bills will be lam before you. ; ff "; ■ v

■■■■■■■■- -:TRUE BILLS. ' 'i■:'.:' , ~ The Grand Jury returned true. WIIb in the folwwing ca«es;:-r~Robert ~Wilson r houde-breaking:j William Roberti, horse-stealing; George Tomlin•SSSj.Jl*6" : Frederick Middleton, horse-stealing: Wilham John Cole, wounding ; William Storey, forgery;; William Simpson, forgery; Samuel Mercer, attempting to do bodily harm'; Arthur fonton, theft; Charley Luck Chang; wounding; Charles Clements, murder ; David Walter Morna and William Kennedy; breaking into and stealing; .James Cooper and Thomas Chatterley, unlawfully pledßiag goods. ' ' \.

_, ,; ■." ■ • NO TRUJ3 BILLS. The Grand Jury threw aut the bills in the cases of Patrick M CaUion and James M.'Guire, charged with assault, and Dorothy King, charged with tnett. - .. ■ ■ , ;. ■ ■■ ~ ... • ... ■-~■.

.-_ -PRESENTMENT BY THE GRAND JURY. Returning into court for the last time shortly after 2.30 p.m. the Foreman said : "May it please your .Honor,—We, the Grand Jury ; desire to express cur thorough concurrence with the remarks made^by. your Honor at the comuiencemeut of the sitting; with reference to the late public piroaecutor,;Mr B. O.JHaggitt. In common with ill other citizens of Dunedin, we could not fail.to observe the eminently fair manner in which Mr Haggitt as public prosecutor conducted his busi-' ness in this court for a very great number of years. We endorse all that has been said by your Honor and that has appeared in the public prints in testimony of Mr Haggitt's ability, fairness, honour,, and industry, we appreciate/the, loss the country and this court of justice have sustained'; by his death. ■ ■ ■

•■' LARCENY OF A CHEQUE. ' V V & i. vJ* 1 r Pont-On 0-7 years of age) pleaded guilty c h,l>° j rg* °(Btealin g a cheque fdV the payment of £12, drawn oy. the JSew Zealand Co-operative and Agency Company on the Bank of New Zealand.

.Mr. W. C. MacGregor asked that prisoner be admitted to probation. He was a first offender ; the police had nothing against him: he had been already considerably punished by being arrested and kept in gaol for a day or two ; and the cheque wnicb hs stole was an open cheque, not crossed or made payable to order or anything of that sort, so that every facility was apparently given to the lad., TO I Hit 6 It.~-■' . ■ .■■ . ■

rv M •' f:. M- Eraser (who appeared for the .Crown, in this case) said, in answer to the court, that nothing was previously known against the prisoner, and the proceeds of the cheque were not

,nvfL M?h G t re^ Ori, 8¥J ile lad accounted for.it by forih hiring bicycles and so , fIEi 3 ?° n°r ! aid that according to the probation officers report repayment of the sum'stolen was contemplated-contomplated, apparently, if he ■TTnnnrtl, PT- OnT °,?'" The only difficulty he (his WU^ Mn dealinewi'n the c»se was a fear •lest it should grow up in the minds of the risine .generation that one man was entitled to commit f^iZS?^J uonls b|7ery dangerous if that feeling did get abroad. However, in the present S?St?w nfi.* tai the '-"cumstances, he did not think that the questwu of probation weighed in tbe mind of the young niiu when he committed nrW %,^.■ eWSf d tO, be put dOWIS- «k e many other things m the colony, to the bicycle crazs. He <i,d not-think that ths prisoner had theTpr<> batipn idea w-yiew He did not think HW justincation-for the offender who had abused his trust that the owner of the cheque should hot. have crossed it, for he must have opened the letter for the purpose of stealing the cheque before he could see that it was not crowed. These, however were only details. What he wished to say. was that he Aid not grant probation as a matter of course. However, the object of the Legislature was to give a mat,, particularly a young man, a chance, and he did not see why it should