SUPREME COURT.

Otago Daily Times, Issue 20706, 2 May 1929, Page 2

SUPREME COURT.

CRIMINAL SITTINGS. (Before his Honor, Mr Justice Smith.) The quarterly criminal sittings of the Supreme Court were continued yesterday before his Honor, Mr Justice Smith. SERIOUS CHARGE AGAINST GIRL. Myrtle Eliza Duncan was charged with on or about October 20, 1928, at Dunedin, unlawfully permitting an instrument to be used on her, with intent to procure a miscarriage, and, further, that she unlawfully used an instrument on herself with intent to procure a miscarriage. The accused, who pleaded not guilty, was defended by Mr A. 0. Hanlon. The Crown Prosecutor (Mr F. B. Adams) said that the charge was divided into two counts. Both referred to the one offence, and the jury could convict on one or the other charge. The case was one of a well-known class. The first point of any outsider coming to hear of the matter was when Dr Borrie was called in to attend the accused, and she had made a statement to the doctor. The mother knew what had happened. The accused shortly after was seen by the police, and made a full statement. On the following day she returned of her own accord to the Police Station, and volunteered a further statement, correcting some errors of detail in the previous statement. ' There was no . thought then of a possible prosecution against the accused, but certain matters had transpired which had led to the prosecution. The statements would be put forward as evidence to convict the accused of the offences with which she was being charged. Where a full confession of a crime was made. it might be considered to be the best possible evidence of the commission of the crime; but, on the other hand, it was onjy fair that even the most detailed confession had to be considered with some care by a jury, because cases had been known where people innocent of a crime had falsely confessed to the crime. They had to consider, if the accused now denied that what she said in her statements were true, whether they were true. Was there anything for her to gain by making a false statement? Was there anything she had to fear? The. jury might look for some degree of corroboration.. He did not suggest to them that corroboration wag necessary, because in law it was not. and they could convict on the confession i tlle a ® cused even although it stood alone. They would, however, consider whether or not the confession coincided with the other known facts, and they had corroborative evidence by the accused’s mother up to a certain point. If it was some other person who had committed tno offenco they had no means of inquiring that day who that person was, and the jury had no right to make any such inquiry so far as tho present proceedings were concerned. The question for them to consider was simply based on the facts of the case as put before them. . Jane He en Duncan, a widow, the mother of the accused, said he daughter wag 19 years of age. Witness remembered a woman coming to see her daughter in September, Sh,e went into the dining, room with them, the conversation being ot a general nature. She left the room tor a few minutes and went to the kitchen. Mr Adams; When you came back to the 10 did you bring something witli you? ■ Witness: I refuse to answer that. .yMr Adams: What were the woman and your daughter ■ doing when you came into the room? Witness; Just'talking. She did not know the woman who called. Mr Adams; Did you know where she lived? Witness: I refuse to answer that. Mr Adams: Had you never seen her before ? Witness; I refuse to answer that. Witness added that Dr Borrie came to her house about a month afterwards, witness sending for him, because her daughter had had a miscarriage. She did not hear the woman who called previously say anything to her daughter before she left. Dr William Henry Borrie said that on being called to the bouse he found that the accused had recently had a miscarnage, but he could not say whether or not it had occurred naturally. Detective Sergeant Nuttall said that he interviewed the accused at her home, and asked her if .it were,not true that an illegal operation had been performed on her by Mrs Clark. This she denied, and witness then told her that he had been informed that she had visited Mrs Clark. She then admitted that Mrs Clark nad performed an operation on her. At tue time he had no intention of arresting her, but was attempting to procure evidence against the person who performed the operation. Mr Hanlon objected to the evidence on the ground that the detective believed her to be guilty of a serious crime, and did not warn her regarding the statement she was making. His Honor said that tho detective was entitled to ask the accused the questions. Witness stated that the accused came to the police station and made a statement, in which she said that she and her mother went to the home of Mrs Clark at Anderson’s Bay, and that Mrs Clark later came to their home and performed an illegal operation on her. Next day she returned to the station of her own accord and made certain corrections. Witness rn ‘n? e 110 P rom ' se or threat to the accused. To Mr Hanlon, witness stated that in the Police Court proceedings against Mrs Clark the accused refused to answer questions, and declined to identify Mrs Clark. It, was then that proceedings were taken against her. Mr Hanlon, in his address to the jury, said they must have been struck by the extraordinary character of the case from the moment Mr Adams had opened it. , They had not to .allow sentiment to interfered with their judgment; it was a matter of justice they had to decide. Counsel went on to deal with . the confession made by the accused, and said it was perfectly plain that the prosecution would never, had been launched against the girl if the police had been able to obtain 'from _ her evidence which would help to convict another person who was accused of using the instrument upon her. ‘ That was the evidence given by Detective Sergeant Nuttall—that they, had no intention originally of prosecuting the girl—so that, as I might put it. this is a spiteful or venomous prosecution,” said counsel. This was a thing- to be strongly deprecated. Here was a girl, 19 years of pge, who was groaning apparently with pain when her mother comes home. She tells her mother, and on going to a Post Office letter box she falls and injures herself. The mother calls in-Dr Borrie, who could not say whether the .miscarriage had been caused by natural or artificial means. The police would not tell who gave them the information as to what had taken place, But somebody must have told. Mr Adams said he would like to point out that five months had elapsed after the doctor’s visit befqre the police took action Mr Hanlon said he was not suggesting that Dr Borrie had ‘given informationlie would not suggest that for a moment. When the girl was first seen by the detective she had denied that Mrs Clark had performed an operation on her. The detective had then told her that he had information about Mrs Clark performing an operation on her, and she had agreed to go to the Police Station and make a statement. At the station, said counsel, the accused had been interrogated, although the police knew all the time that she had been guilty of a crime and could be arrested and punished for that crime. They had taken a statement from her after questions, questions, questions, and then in the witness box, when called to give evidence against Mrs Claik, the girl said she could not identify Mrs Clark, and Mrs Clark had got off on that charge! And then they had turned round and prosecuted the girl on the statement she had made to the police by interrogation. -When the magistrate had dismissed the charge against Mrs Clark the police had said to the accused in effect that she could go into the dock herself now and take what might have come to Mrs Clark. He asked if the jury was going to allow a prosecution of that sort to succeed. Mr Adams said he would again like to point out that it was five months after Dr Borrie’s visit that the information was laid against the accused by the police. The doctor had nothing whatever to do with it. Mr Hanlon said he knew Dr Borrie so well that he would not make even a suggestion of that kind against him. His Honor, in summing up, said that there- was no evidence on which the jury could convict on the second count, and he advised it to acquit the accused on that charge. There was no doubt that a miscarriage had occurred, and the question

for the jury to decide was how it was brought about and whether the girl had permitted an instrument to be used upon her for that purpose. It was natural and proper that the police should go to tho girl and ask for information. A rule was followed by judges that when the police had made up their minds to arrest a person, the person should be warned, before any statement was taken. At the time the statement Was taken from the accused there was no intention to arrest her. It was only after the accused had refused to identify the woman, who, she had stated, had carried out the operation, that it was decided that the girl herself should be charged. It had been suggested to the jury that this was most improper, but it' had nothing to do with the fact that she did or did not permit an instrument to be used upon her, which was the only question which the jury had to decide. The police methods had nothing to do with the facts before the jury.. It had to decide whether the girl’s behaviour was natural. She made a statement and returned to the police station next day of her own free' will and made a correction. The jury must test the truth' of the statement by the surrounding circumstances, which his Honor proceeded to outline. It was not a question of sentiment but of the administration of justice, he said, and the question was just did she or did she not permit an instrument to be used upon her. He deprecated any reference of the court because it was the business of the court to attend to that. ’ The jury retired at 11.40, and returned at noon with a verdict of not guilty. The accused was discharged. ■ A GRAVE CHARGE. Mary Jane Clark was charged with, on September 10, at Dunedin, with intent to procure the miscarriage of a girl named Pearl Caroline Hislop, unlawfully using an instrument or some other unknown means; further, with unlawfully supplying an instrument or thing to Pearl Caroline Hislop, knowing that the same was to be unlawfully used or employed, with intent to procure a miscarriage. Mr Adams said that there were two counts in the charge, but the first was the one to which he desired to direct their attention. This was a court of law, not of morals, and the'law of the land frowned upon this kind of crime. The girl Hislop and a man named Sidney Smith would give evidence, and would tell of their visit to the house of the accused, and the girl would give details of what was done to her by the accused when they were in the bathroom. Smith had come to Dunedin from Balclutha on September 8 to see Mrs Clark, on September 9 he had arranged to take the girl to Mrs Clark’s, and they had gone there on September 10. The witness Smith bad taken the precaution to cash a cheque for £ls and had received three £5 notes. The girl and Mrs Clark had gone into the bathroom, and the operation had ,been performed there by Mrs Clark. The girl and Smith were let out of the house by the back way. The only question was the identity of the accused as the woman who did the operation, and it was for the Crown to satisfy them that Mrs Clark was the woman. As regarded identity there were three main lines; (1) Both the girl Hislop and Smith would identify Clark as the woman they had met at the house and who had performed the operation; (2) the house in which the opCratibn took place would be identified; and (3) the furniture in the house would be described, and they would find that two of the witnesses possessed a fairly accurate knowledge of the interior of the house. Pearl Caroline Hislop corroborated the statement of the Crown Prosecutor. She gave dtails of the furniture in the house on the Anderson’s Bay road, to which Smith took her, and of what took place between her and the accused. Sydney George Smith, a wool buyer, living at Balclutha, described visting the house of Mrs Clark with the previous witness. Before'they left he gave the accused £lO. ’ Jane Canning, the proprietress of Club House, gave evidence that Miss Hislop stayed at her boarding house from Monday, September 10, until the following Saturday. Acting Detective Kirton, police photographer, gave evidence regarding photographs which he had taken at the home of the accused. Detective Sergeant Nuttall stated that on February 21 he went to the home of the accused and arrested her on the present charge. She asked, “Who is this girl? ” Witness said that she was the girl who had left a baby on the accused’s doorstep a few days previously. The accused said, “I don’t know her and never saw her in ■my life.” He made a search of the house, but found no instrument which could be used by an abortionist. Mr Hanlon admitted evidence that Smith cashed a cheque for £lo with a hotelkeeper before the offence was alleged to have taken place, receiving three £5 notes. ■ Mr Hanlon, in addressing the jury, said that tho Crown case was that the accused actually used an instrument, and it asked the jury to believe that the accused was so foolhardy that she carried out the work of an abortionist while a nian was in another room. Miss Hislop and Smith were called accomplices in law, and their evidence was tainted because they had been guilty of a criminal act. They could have had informations preferred against them and could have been tried. The man knew he was committing a crime and must have been timid. So must the girl have been timid, but the jury was asked to believe that these people were able to describe in minute detail without assistance a room in therhouse of the accused. The Crown said that that went to show that. their evidence was truthful. Was it possible that they could have remembered so much without prompting? The fact that Smith cashed a cheque before he went to the ■ house was intended to be corroboration, but did it prove that he paid it to the accused, or that she committed the offence? Similarly the evidence of Mrs Canning did not connect the accused with the crime. The law stated that it was dangerous to rely on the uncorroborated evidence of an accomplice. Could Miss Hislop and Smith not have put their heads together in order that they could describe the house? The jury should remember that the evidence of one tainted witness could not be corroborated by the evidence of another. The corro-' boration must be something which tended to connect the accused with the crime, but the evidence which the Crown intended for corroboration did not do so. There was nothing against the accused but the evidence of two peoplo who Ought to be in the docks themselves. In order to save their own skins they gave evidence against her. The Crown must prove its case on clean and pure evidence upon which reasonable men could rely. If people could be convicted on such evidence as had been given in this case, nobody was safe. Hia Honor, in summing up, said that there was no evidence on the second count, and the only question for tho jury to decide was whether the accused herself used the instrument on the girl. The evidence was that of accomplices. If tho jury had tho evidence of the accomplices without n direction from him it would have plain evidence that the accused was guilty, but it was his duty to warn the jury not to convict on the uncorroborated evidence of accomplices, though it might do so if it was satisfied that the accused was guilty. Corroboration should be independent evidence which went to show not only that the crime was committed, but also that the accused was connected with it. There was nothing in the fact that Smith cashed a cheque for £l6, nor did the evidence of Mrs Canning connect tho accused in any way with the crime. The evidence that the accused possessed a house which corresponded to the description of the witnesses might bo some corroboration, but it could not be regarded as strong. It was corroborative in some slight degree of tho fast that Miss Hislop and Smith were at the house at some time or other, but it was not corroborative of the fact that the accused used an instrument. It was corroboration of part of the story of the witnesses and the jury was, therefore. entitled to assume that the whole of their story was true. The jury retiredat 3.5 and returned at 3.27 with a verdict of not guilty, one of tho audience in the- gallery shouting “ Hurrah.”

ALLEGED THEFT OF TOBACCO. Henry George Parsons and William Stewart Scott were charged with, on September 13, 1928, and on various dates to December 10. stealing quantities of tobacco and cigarettes, of a total value of £SO, the property of James Rattray and Son. Parsons being a servant of the company. Scott was ’also charged with, knowing the same to bo dishonestly obtained, receiving from Parsons quantities of tobacco and cigarettes, of a total value

of £.50. Parsons and Scott were further conjointly charged with knowing the same to have been dishonestly obtained, receiving from acme person unknown tobacco and cigarettes of a value of £SO, the property of James Rattray and Son. . —^• S. Sinclair appeared for Parsons and Mr C. J. L. White for Scott. Both accused pleaded not guilty. Mr 'White said he intended to apply for a severance of the charges. The depositions consisted largely of lengthy .statements by the two accused, and a considerable bulk of the evidence called in the lower court was directed to prove that the statements made by Parsons were untrue. It seemed to him unfair to the accused Scott

His Honor: Perhaps it will'be better it the point is discussed in Chambers. Began argument was then taken in Chambers, and his Honor decided not to separate the charges. . Counsel for the defence challenged 12 jurymen and the Grown Prosecutor three before the full panel was selected. The Crown Prosecutor said that for some time before the dates in question Parsons , had been employed by Rattray and bon m Dunedin. Scott was a tobacconist carrying on business in Moegiel. On December 10 last Mr Elvidge, manager of Rattray and Son, was going through the firm’s correspondence, and inadvertently he opened a letter addressed to Parsons. Scott s name did not appear on the hooks of the firm, nor was Parsons’s name there as one to whom tobacco was sold. The letter read: "Dear Harry, this cheque is alj right." (The cheque was for £l3). The letter continued: "I will be in on Thursday at 12.” A list of tobacco and cigarettes wanted was also in the letter, which was sighed "Bill.” It was subsequently found that there was a substantial shortage of tobacco in Rattray’s firm, running ,into a value of about £BOO. The charges, however, did not relate to the whole of that amount, and he only mentioned it to show that there was a shortage in the firm’s tobacco stocks. The matter was handed over to the police, but before following the lines of the police investigation one or two matters were discussed constituting outside evidence in the case. There was a youth named Miller, who stated that on three occasions in the months of October and November he had received parcels from Parsons for delivery. He had taken one parcel to Hamilton’s Tea Rooms and two to Townsend’s shop in Lower High street. Miller could not state whether these parcels were or were not addressed. He received two tins of cigarettes, fifties, as a reward for his services in taking the parcels these short distances. On the fourth occasion Miller had declined to take the parcel, saying that he was too busy, and he delivered no more parcels. Then they would have the evidence of a girl named Hutchison, an employee at the Tivoli Tea Rooms. She would say that Scott was in the habit of leaving parcels in the shop, and that she had seen him handling tobacco. A carrier named Hornibrook, living at Mosgiel, would also state that on two occasion- he had. received left luggage tickets from Parsons. He had presented these, collected the goods, and carried the goods to Mosgiel. They were left at a shop next door to Scott’s, but it was Scott who paid Hornibrook for hia services. Hornibrook had also picked up parcels for Scott from the Tivoli Tea Rooms. Detectives Russell and Roycroft had interviewed Parsons, and he had said that the tobacco had not come from Rattray’s, and had not been taken from their stores. Parsons had declined to say where the goods had come from, but subsequently he said he would tell them the name of the man from whom he got the tobacco. The name would figure a good deal in the case, and it wohld be a matter for them to consider whether he ever existed or whether it was, a mere figment of the imagination. Counsel then proceeded to read the statement made by Parsons to the police. In it he stated that he was a married man with five children. About 12 months ago he had been mates with a man named Percival Rodgers, who, before he left the employ of Messrs Rattray and Son, asked him if he wanted to make some, easy money. A man named Thomson could get tobacco cheap, and if Parsons handed it to Scott he would get commission. If the dealings were honest, said Mr Adams, why did Thomson need an intermediary to deliver parcels to Scott? Frequent reference was made by Parsons to notes which he had received from Thomson, but none bad come into the hands of the police. Parsons proceeded to state that after Rodgers left, he (Parsons) received a note from Thomson, saying that he had a parcel for Scott. Thomson would let Parsons know where it was. Parsons added that he never handled parcels himself, • but merely told Scott where they could be picked up. Why, asked Mr Adams, did Thomson not tell Scott himself? Parsons proceeded to state, that when Scott needed tobacco he sent a note to him, and he waited for a rung from Thomson or left the order with a barman in the Terminus Hotel. The bai'rpan, however, would give evidence that he had never received letters from Parsons to hand to Thomson. When Parsons was shown the cheque for £l3 he said that it had been sent to him by Scott to hand on to Thomson. Parsons added that he was under the impression that the tobacco came from the wharf. Thomson had never told; him where he got it. The Crown Prosecutor suggested that Parsons, must have known, even if his statement were true, that he was engaged in criminal dealings. It was the duty of the police, of course, to endeavour to find Thomson, but Parsons said that Thomson had'not given him his permanent address, but be believed that he stayed at hotels while in Dunedin. He only knew that he hawked clothing in the country. Of course, hawkers required a license, but no license had been issued in the name of Thomson. According to Parsons, he was a man 42 years of age, fair, and of slim build. .There had been plenty of time for Par sons to produce Thomson, or, if he could not, he could surely produce someone who knew Thomson. The police had done their duty, and had failed to find Thomson. It was the same old story of the unknown man. The probabilities were that Thomson was invented as a useful man in case of investigations. The detectives saw Parsons again, and ho made a second statement. He said that he had received about eight cheques from Scott, and all were between £3 and £7, excepting that for £l3. He then. added that he had cashed only one. Two boys and a youth had been sent to him by Thomson. These, said Mr Adams, were three more unknown persons. Parsons said that two .of them had brought notes.addressed “To 11.Parsons from J. Thomson,” but both tho envelopes had been lost. The cheques would be shown to be open cheques. Was it likely that that would be so if the dealings were honest? Parsons added that he understood that tobacco dealers bad to pay £SO-for a license “in case they broke the laws,” and that was why Thomson wanted him to pass the tobacco on to Scott. Surely Parsons could find a fellow employee who remembered the boys calling. Four days later Parsons was seen by Detective Russell and when the name of Fraser was mentioned, he said that he remembered cashing some cheques through a carrier and a barman. If there were a J. Thomson, surely he would cash the cheques. Thomson had to be kept in tho picture, and Parsons said he had paid the money he received from the cheques to Thomson. Parsons was given further time to find Thomson, hut Parsons was now envisaging the possibility of not finding Thomson. , On February IG Parsons told the police that ha could not find Thomson. The police had got into communication with Rodgers, and ascertained that Rodgers had never known Thomson. Parsons when told about this by the police, said “ I have nothing more to say.”

Mr Sinclair said ho thought no notice whatever should be taken of tho suggestion to tho jury that Rodgers had made such a statement to the detective’s inquiries.

His Honor said they had better leave this point to be brought out in evidence. Counsel said that the police had interviewed Scott. He showed them some cheques, but none fro.m Thomson. Scott then made a statement to the police implicating Rodgers, but the police had no evidence whatever to connect Rodgers with the transactions beyond the statements of the two accused. Scott had said that he had got parcels from Rodgers when he had worked at Rattray's. When Rodgers had left he had told Scott (according to the statement) of a man named Thomson, who could get tobacco at a reduced rate through Parsons, and Parsons was introduced to the accused Scott. If the jury concluded that Thomson was a myth, then the accused Scott was as much tied up with that as Parsons. The Crown Prosecutor further traversed Scott’s statement, and said that Scott could not estimate the amount of the money he had sent to Parsons. The court adjourned at half-past 5 till 10 o’clock this morning, when Mr Adams will continue his address.