SUPREME COURT.

Otago Daily Times, Issue 16542, 16 November 1915, Page 3

SUPREME COURT.

CRIMINAL SESSIONS. Monday, Novmisei: .15. (Before his Honor Mr Justice Sim.) His Honor took his scat oil the bcnch at 10.30 a.m. A SERIOUS CHABGE. John Daniel Black was called on for retrial, the charge against him being that, on or about September 4, at Anderson Bay, he did attempt to commit a serious offence on a young woman. On a second count he was charged with indecent assault, and on a third count with assault. When the accused was before the court last week the jury failed to come to in agreement. Mr W. C. MacGregor, K.C., Crown Prosecutor, conducted the case for the Crown, Mr A. 0. Hanlon appeared for the accused, who pleaded not guilty. The public were excluded from the court. After the cas.3 had been heard the jury retired at 3.15 p.m., and, before deliberating, visited the scene of the alleged assault. They returned to court at 4.50 p.m. with a verdict of guilty on the third count — that of common assault. The prisoner was remanded for sentence until the following morning. CIVIL SITTINGS. (Before his Honor Mr Justice Sim and a jury of four.) COUGHLAN V. JOXEB. Claim £250, damages for libel. Mr W. L. Moore appeared ior the plaintitf, Mary Couglilan, and Mr J. MacGregor for the defendants, James Jones and Minnie Jones. The plaintiff, in her statement of claim, alleged that on March 15, 1915, she suffered damago lrom the defendant, Minnie Jones, falsely and' maliciously publishing of the plaintiff a letter, sent to Mrs Smith, with the following words: "His mother kept a brothel a few years ago, and I would not like to tell you what I heard, about him, and which I know is true." The defendants, in their statement of defence, admitted that the letter was sent, with the words quoted, but contended that those words wero not written concerning the plaintiff and were not written maliciously. They also contended that the letter was sent on a privileged occasion in good faith and without malice.

Air Moore said so as to let the jury and his Honor know what the position ot tne parties was he might as well explain the relationship. The defendant Minnie Jones was first cousin once remoyed to Nellie Hewitt, now Nellie Coughlan. Coughlan and Mrs Jones were what was commonly' called second cousins. Nellie Coughlan was married to Robert Coughlan, son of the plaintiff. Mrs Jones wrote a letter to a. sister of Nellie Coughlan, Mrs Smith, and in that letter was the libel complained of. This letter was dated March 7 of this year, and in referring to the young man that Nellie Hewitt was marrying she said: " Between you and me I think it is a great pity Nellie is marrying that fellow. No one has a good word for him, and people who have known him reckon he is no good." Then followed the words complaincd of, which were that the young man's mother had kept a brothel and that was about the worst statement that could bo made regarding a woman. The letter reached the hands of plaintiff. Mrs Coughlan had received a great shock, as the statement made was absolutely false. The statement with regard to her son, with which they had nothing to do just then, might be taken as false also. Plaintiff had been a widow for 28 years, and had been left with a family of four small children. Those shf£ had to bring up andi maintain, though she had been left with very little. Three of these children were now alive. They were three eons, all married men, one being in the post office, one on the railway, and one in the plumbing business. So that these three sons about whoso mother this scandalous statement had been made were honest, hardworking, respectable men, and the mother had brought up her family in a proper way. The statement of claim simply pointed out that plaintiff had suffered damage on account of the statements, and plaintiff asked for damages. The statement of defence admitted that the words had been used, but set out that they were not written concerning plaintiff, and were not written maliciously. It would be shown that they could not possibly have been written about anyone else, and the letter was not a privileged communication, aa stated in the defence. What Mrs Junes said was that she wrote the letter with an lioneet desire to protect the interests of the family, and that she honestly believed that the young man (Coughlan) was a son of a Mrs Coughlan who had kept a brothel. It was only when action was threatened that Mrs Jones expressed regret at having written the letter, but that statement was not true, because s>» had on no occasion written to Mrs Smitn, to whom the letter was •originally sent, and on no previous occasion had she told Mrs Smith that she was sorry, and on no previous occasion had she said that the facts were not true, and that she had been mistaken. His Honor remarked that if the communication was privileged, Mr Moore had no case, with which Mr Moore agreed. His Honor inquired whether, supposing that he ruled that the letter was privileged, Mr Moore was prepared to ask the jury to find that there was malice.

Mr Moore replied that if the letter was privileged it would be a question whether that j privilege was abused. It would be better to assume that it was privileged, and let the jury deal with the facts, and then have the question of privilege argued. Evidence was given by plaintiff (Mary Coughlan), Ada Smith, who had received the letter from Mrs Jones, and Nellie Coughlan, nee Nellie Hewitt. Evidence was also given by Marie Coughlan, a resident of York place, who said that there was no other Mrs Coughlan living in York place except plaintiff and herself. The statement complained of could not possibly refer to her.

Mr MacGregor said that the letter, under the circumstances, was a privileged communication. Assuming that that view was taken, then it followed that plaintiff could not hope to succeed unless malice could be proved, and he submitted that there was no evidence to justify the jury in finding malice. Counsel proceeded to quote authorities on the question of privilege, and said there was practically no dispute as to tho facts. Mrs Jones admitted that sho had written the letter. Her defence was that she had reason to believe that the s?oung man she heard Nellie Hewitt (her cousin) was about to marry was' not a desirable addition to the family, and, thinking it her duty to communicate what sho believed to be true, she made known what she believed to be fact. That was a fair and proper thing to do. She wrote to Nellie's married sister, Ada Smith, thinking she would disc if ss this matter with her mother, Mrs Hewitt. Afterwards Mrs Jones had reason to believe that she had made a mistake—that she had been misinformed as to Mrs Coughlan—and she took the proper course. 5. The action was also against Mrs Jones's husband, but that was a mere technicality. Ho knew nothing of the case. Mrs Jones had been prepared to write a letter of explanation to Mrs Coughlan that she could have shown to any of her friends. She had offered something better than a jury could give plaintiff. Evidence was given by defendant (Minnie Jones). His Honor said the best course would bo to put issues before the jury, and lie would put the following ones: —(1) Did defendant (Minnie Jones) when sho' wrote the letter of March 7 honestly believe the statement therein as to the plaintiff to be true? (2) Did she write the letter simply from a desire to prevent Nellie Hewitt from' contracting an undesirable marriage? (3) Did sho do so for any other reason? (4) What damages is the plaintiff entitled to? His Honor remarked that the question of privilege could be argued afterwards. He proposed to .rule in the meantime that the communication was a privileged one, and, in order to succeed, it would be necessary to prove that there had been malice on the part of Mrs Jones.

After a retirement of an hour tho jury returned with the following answers:—No. 1, Yes. No. 2, No. No. 3, Yes. On the fourth question the jury was unable, to agree upon an answer. Counsel for the parties accepted the answers, and left it to his Honor to assess the damages. Further consideration of tho action was adjourned, leave being reserved to defendant to move for a nonsuit on the ground that there was no evidence of malice to go to the jury.

ASSAULTS ON CHILDREN. NEED FOR STERN MEASURES. (Pkb United Press Association.) AUCKLAND, November 15, Tho Supreme Court sessions opened today. Mr Justice Stringer said he regretted that tho calendar was unusually heavy. Twelve charges related to offenccs of a sexual character. Commenting on tho large number of charges of indecent assault on young children, his Honor said that if aggravated cases of this kind continued to occur the judges would havo seriously to consider tho reintroduction of flogging. In none of the present cases had children suffered serious results, but parents and guardians could not be too carcful to protect them from being tampered with by men of vicious habit*.