SUPREME COURT.

Otago Daily Times, Issue 14379, 24 November 1908, Page 3

SUPREME COURT.

CRIMINAL SITTINGS. Monday, Novkmbeu 23. His Honor Mr Justice William* look his seat on Ihe Bench at half-past 10 o'clock. THE (iHAND JURY. The grand jury was composed of the following gentlemen:—Andrew Todd (foreman), John Worni Bulges, George Robertson Oh(\\seman, James Alexander liurl, William Emery, Samuel Spencer Jfonnister, James Rrown, Edward Trythall, Percy Braithwaitc, Richard S.imlilands, Thomas M'CVlluiii Gillies, George William Gibson, Charles Holdsworlh, Arthur Hudson, John 'Angus, George. Tiirnhull, Henry Logio James, James Archibald Sligo. Donald Charles Cameron, Arthur John Shaw, Alexander Murdoch. ins uoxon's ciiarok. His Honor's charge lo the grand jury was in those term.-;:—"Mr Foreman and Gentlemen of the Grand Jury,—The cases which will como bslore you to-day aro .somewhat more numerous and of a- more serious character than usual. The facts,- however, in the greater part of them aro comparatively simple, and I do not think .you will find much difficulty in dealing With (hem. Itiere is a charge against a man of the attempted murder of two' persons. The charge on which ha was committed was attempted murder. 1 have not seen the indictment, but I think it is.probable it also includes a chargo of attempting to do grievous lv.xiiiy harm. However that may Ijo, the eaiic. made a-zaiust the accused by the depositions is that he came with ;v revolver to where his. wife wan; that-' hn pointed jt ar her. hut war. prevented from firing it; afterwards he went out, uvi a man Humeri Hubbard wanted to get Vm revolver from him, and he fired at Hubbard, fortunately niir-si-iis; him. There are two. cawes of rape. There is no need to enter into Ihe details c-f these; you will have (lie witnesses tafor, l you, and will ,be able,to judge of their.credibility. There is a ca-'io where a woumii, is charged with using instruments to procure a miscarriage. The principal witness against, the accused is itho girl on whom the instruments were used. There is a case of indecent assault on a- child of nine'years. In that ease, aiso. you wilt .have the principal witnesses before you,, and will be able to judge of their credibility, There is a curious case where two persons—husband and wife—are charged with the offence of wilfully ill-treating a .child under 16 years of age, of whom they had the control—of ill-treating her in a manner likely to cause her' unnecessary suffering. The. circumstances of the case are of a very peculiar nature; you will hear them when foe evidence comes before you. Thoro is a case where two men are charged with robbery of money from a man who was in a-partial state of intoxication. The only other case is a case'where a man who was charged before tho magistrate with being an incorrigible rogue has elected to be tried by a jury. The evidence from the depositions seems sufficiently plain. You will remember, gentlemen, that your function is. not to decide as to tlie ultimate guilt, or innocence of tlie accused, but simply to seo if the evidence brought before you i 6 such that tho accused is ■ called upon to answer the charge. If so, you should find a trim bill. I If the ovidence is not sufficient to call upon him.to answer tho charge, then, of course, you will ignore the bill. If you will retire to your room, gentlemen, the bills will bo laid before you." TRUE BILLS. The grand jury returned true bills in tho following eases,—Percy Johnston,'- rape; William \Valquist : and Alexander Walquist, assault and robbery; Henry Blair and Adam M'Corkindalc, forgery of a school certificate; James Wood, rape; Benjamin Barker, indecent assault; John Webster, attempted murder; Mary Crosswell, illegally using an instrument; Charlotte Smith and' George E. - Smith, eru-olty to a child; and Wfliam l-Luby, vagrancy. ' , n.\rE. . Percy' Johnston, charged with rape at Dunedin,. pleaded " Guilty." The accused was undefended. The Crown Prosecutor (Mr J. F. M. Fraser) said the accused's character was reported by the police-to bo bad. On September ,27, 1906, at Dunedin, ho was convicted of theft, and ordered to come up for sentence whon. called upon. ■ ■ His Honor asked Mr Fraser if ho had seen the accused's, statement,' and Mr Eraser, after reading it, said the accusedmight lwyeanticipated the girl would not resist, but she did. resist. The detective heard her soreaniiag for five minutes. ■ In reply to his Honor, the Crown Prosecutor said the accused-was at one time a. cleaner in the railway sheds. Ho was discharged', and than did labouring work. His Honor said the offence to v.;hich tho accused had pleaded guilty was one of the most serious known to the law. He had read accused's statement. Accused said lie never struck tho girl. The .appearance of the girl, as disclosed by the depositions, absolutely contradicted that assertion. The accused must have a?ed violence, and considerable violence. The accused was young, it was true, but that was no reason why a stent sentence should not be passed. His Honor went on to say be would pass d long sentence on the accused, He would not order a flogging, because, to' his, mind, it wae better that there should be a long sentence without flogging than a short sentence with flogging. It was better, too,' for society that persons who acted in this way should be prevented from 6uch conduct and from -being at large for as long a period as possible. The sentence of the court was that the accused would be imprisoned for a term of 12 years ,and kept to hard labour. ROGUE AND VAGABOND. William Luby was charged with being a rogue, and a vagabond, having failed to satisfy .a justice of the peace that he had sufficient lawful moms of support. The accused pleaded " Not guilty." Tho Crown Prosecutor said the accused was charged under sections 49 and 51 of the Police Offences Aot. It was a typo of case that rarely came before the court, but as it was punishable by a year's imprisonment the accused had the right in the lower court of electing to ho tried by a jury. He elected. accordingly. The practice of the police in these cases was this: If a man was seen knocking about late at night doing nothing ,and drifting downhill, ho was given a notice by a- constable to appear before a justice. He appeared before that justice, and made his explanation. Sometimes' he borrowed a £5 note on the way and produced it to show that ho was a siiialbcapita-lisfc. Or ho might.give some other explanation, with which the magistrate might or might not lx> satisfied. If the justice was not satisfied, the man was again summoned to appear lieforo a justice or a magistrate, and the case was gone into. It was a cumbersome method of administering the act. The man was really tried twice for the same offence. The procedure was founded on a Victofen case. It might be that the magistrate in the first case might not believe the man's story, but the second' one might. Under section 49 this accused received a sentence for being an idle and disorderly person, having insufficient lawful menus of support. Then, according to the evidence, the accused did not turn over a new leaf, and did not go to work. He was seen hanging aliout. town for a lengthened period -late at night in the company of drunken- men and showing drunken men to quarters lo which they did not want to go. He was warned by the police to go to work, and did. not. Finally, he was givt-n an opportunity of leaving the Dominion. He said -he ivould go, and tounsel who appeared for 'him said be would go;

bul, he (lid not go, and lie now appeared lx-foro (lie court charged villi being u rogue uml it vagulioiid. At the request of the accusal! all witnesses were ordered out of court.

Evidence was given by Constable M'Holm, Robert P. Ward (clerk, of the Dunedin Magistrate's Court), / Detective M'Leo.l, Constable Carroll, and-Sub-inspector Norwood. ■ . During Ihc hearing of evidence 11 is Honor remarked that there appeared to be a i difficulty about- ihe case. Whero a man was 1 summoned' for this offence it must bo I J proved before a justice in the first, instance I by independent- evidence that he had insufficient means of support, and Men the accused must be asked to justify lumsdi, and if he,did not justify binned he was . liable to be convicted. I The Crown Prot-ectilor again mentioned ! thai the practice followed in Dunedin was similar'to that; in Victoria. His Honor V-aid it was very complicated machinery. /He would like to know tho | practice elsewhere. ' | Mr Ward, clerk of the Court, explained' that in Christchurch, Wellington, I I and other places a man was summoned or I j arrested on a charge of lxsirijj an idle an<l ! disorderly person without an/ preliminary i investigation'before a justice*. 1 His Honor Raid that seemed to be tho ! proper way. It might he necessary for ! hi in to reserve IJIO ease. The Crown Prosecutor said it, would lie a good thing to get a clear instruction en the matter. Tho practice here was absurd.. It meant that a man was tried twice. His Honor said that in the mount imo lie would leave the jury to find whether' the man had or had not lawful means of support. / Frederick- Richard Hobbs, called by accused, said lie was, tho late proprietor of the Silver Grkl. He remembered being in company with accused and others one cveiling. ' They Blood under a. verandah in .'i'rinces.stw.'Ot, and an old g-sml-eman, who was ono of the party, asked if any of them knew .where he could get a M. He asked witness if he.could take him home, and witness replied that he was a married man and', had no room. \V*itii'?s,-i di<l not remember askung accused .if there was room whero lie was.stopping,'but knew, tlio old gon'tieman had not engaged a room. Ho did not think "that if the old-man had gone homo wifih accused'that might there was ari'y danger of accused robbing him. If tho inoji liad bee)i roWied lie (witness) would have •mown it" from the "maii! To the Crown Prosecutor: ''Witness liad kn-own accused -as a casual customer for about six months. Tho old man paid witness in the presence.of accusoil. Tlio old man eaid .he had slept tho previous night in M'Lean'e boarding-house, and added; that ho thought it was 'then-too late to go there aa ho would not get in. ' Johri M'Kowcai,. horso trainer, said he had'know accused for four'or five years. Witaca'reipcmbsrcd'accused being at the racing stable working for hie (witness's) brother. Ho believed'he-was there for nine or 10 months, and was left in charge for a brief time on different Witness novcr ; missed anything'from the house or harness room. " _ • . To the Crown Prosecutor: Witness had never' seen accused' -work, except for his brother. * Accused ,ivas discharged because the racing stables were -jiven up. Peter Allan Thomson was called, but did not appear. ' • ' ■,",.. Tho Crown Prosecutor: The constable who served him. is horc. He announced his intention .of not coming. Ho said lie knew nothing about tbe case, and would rather commit contempt of court tlhan come. Ho is working on tho duplication works- at Mosgicl. .■■■'•'. His Honor: If he cannot be got, he cannot be got. _ Accused-: I don't think it is fair to me. I should say ho ought to be compelled to come after being subpoenaed to come. His Honor: I think the man ought to come A man'knowing accused and knowing habits aught to come.' It was.then-decided that accused, should• call his other/witr.rescs, ' ■ : ' v Jane Callender said she had; know accused for'four.or five months. He arranged to take' his at her place, and did so until' about tlio end of August. One of witness's sons went away to Oamaru, and accused ' went to board with her. and hor .other son, and was stopping 1 with her when 'served with a summons to appear 'in; the Police Court. Accused always paid,his way, and' did owe 1 witness anything. When the police went to her place'they asked her if sho knew she was harbouring'one of the worst criminals in New Zealand.. If thoconstable swore he only said "It does..not, look well to have Luby going in uoid coming out of your, house all hours of the night" he swore falsely., • Lizzie Clayton, residing-, with Mrs Oal--lender, said she_ had * known accused, for three months, a.ud had never scon anything about 'him to 'make her'; claw him as a rogue aj.d vagabond. Witness repeated the statement made by Mrs Callender' as to what the police had and had not eaid, and added that accused liad always come in, by II o'clock or a few minutes afterwards, Jean Callender gave 'evidence- as to,; accused having ; beon well behaved during tho, tijnq he had" stayed at her mother's, He had never borrowed money from witness,' and' had always paid his way. Tho case, at this 'stage, was allowed to, stand over till' next morning for the production of the witness Thomson. ill-thbating a cira, Ctsorge Edward Smith and Charlotte Elizabeth Smith, husband and wife, were indicted ,with, between November 10, 1907, and 1 February 9,1808, at Green Island, having then the custody of a girl under the age of 16 .years, wilfully ill-treated her* iii a manner likely to. cause her unnecessary suffering. There We're seven other counts of having indecently assaulted th* girl. Both accused pleaded "Not guilty." The Crown Prosecutor said his Honor liad probably not soon the depositions. Tho case "was a peculiarly 'filthy 'pnc.

His Honor said awaiting jurors would I »}• ■ discharged till 2 o'clock the lollowing afi'-iT.oon, except those engaged in Luby's j casp. and the court would be cleared of all but those encased in the case and the piess repres.?iilalive-. I lie Crown I'roseenlor opened the case at raiwlerablo l«ngi.h. He said the first «»'!!t! was laid under ihc Children's Protection Art, of 3890. As to this count,' the jury had to' he satisfied the accused had I thr- custody of. the girl,iiii(jiH-'frfate"d her .1:1 « manner likely to cause the child iiiintCrwiry .siiffcririg. The other, counts v>ro for...indcwnt assault, and were directly connecUd with the first count. J'lip of the case were, peculiarly revolving, and it would lie necessary to explain the treatment extended to this t-hild.i She, was a girl under 16 years of ajr, and a sister of the female accused. •S-he went, lo live with flip, accused at. Green Island. The girl's parents resided Hampden. People were apt to think cliddrcn might he depraved, and inclined io o>:agirorate, and the caro must ho looked closely into to see if {here was any other possible explanation of it. H-> (the Crown Prosecutor) would he giad if there was «ome other explanation than the one he hod to place before {he, jury. It would be difficult for the jury to credit the -story. I 'J'lic jury need not ask itself what induced Iho accused to do this. It had only to be satisfied it was done. The method of the, ill-treatment, practiced by the two accused upon the girl he would explain. Much ■of tho punislinvnt was inflicted by the male accused, but in the heavier punishments both accused wwe present. This young girl had been thrashed over 50 times, and had received 275 strokes in ali on tlie bare flesh while she was absolutely nude. T't-s female accused seemed lo liave liccn actuated by an intense dislike of the child. Crown Prosecutor thra proceeded to detail the lref-hod of punishment adopted by tlie accu-:od, commenting upon it scvOTe.lv as he went along. Evidence was then calted. the girl allowed !o have been ill-treated being tfi.i first' witness. She said she was 16 years old on February 1 last... ISIIO was crossexamined at length by i-h<» male accused. Tho court, rose at 6 p.m.